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82–195 2013

FEDERAL AND STATE PARTNERSHIP FOR 

ENVIRONMENTAL PROTECTION ACT OF 2013; 

REDUCING EXCESSIVE DEADLINE OBLIGATIONS 

ACT OF 2013; AND FEDERAL FACILITY 

ACCOUNTABILITY ACT OF 2013 

HEARING 

BEFORE THE

SUBCOMMITTEE ON ENVIRONMENT AND THE 

ECONOMY 

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

MAY 17 & 22, 2013 

Serial No. 113–43 

( 

Printed for the use of the Committee on Energy and Commerce 

energycommerce.house.gov 

(II) 

COMMITTEE ON ENERGY AND COMMERCE 

FRED UPTON, Michigan 

Chairman 

RALPH M. HALL, Texas 

JOE BARTON, Texas 

Chairman Emeritus 

ED WHITFIELD, Kentucky 

JOHN SHIMKUS, Illinois 

JOSEPH R. PITTS, Pennsylvania 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

MIKE ROGERS, Michigan 

TIM MURPHY, Pennsylvania 

MICHAEL C. BURGESS, Texas 

MARSHA BLACKBURN, Tennessee 

Vice Chairman 

PHIL GINGREY, Georgia 

STEVE SCALISE, Louisiana 

ROBERT E. LATTA, Ohio 

CATHY MCMORRIS RODGERS, Washington 

GREGG HARPER, Mississippi 

LEONARD LANCE, New Jersey 

BILL CASSIDY, Louisiana 

BRETT GUTHRIE, Kentucky 

PETE OLSON, Texas 

DAVID B. MCKINLEY, West Virginia 

CORY GARDNER, Colorado 

MIKE POMPEO, Kansas 

ADAM KINZINGER, Illinois 

H. MORGAN GRIFFITH, Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Missouri 

BILLY LONG, Missouri 

RENEE L. ELLMERS, North Carolina 

HENRY A. WAXMAN, California 

Ranking Member 

JOHN D. DINGELL, Michigan 

Chairman Emeritus 

EDWARD J. MARKEY, Massachusetts 

FRANK PALLONE, JR., New Jersey 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

ELIOT L. ENGEL, New York 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

JANICE D. SCHAKOWSKY, Illinois 

JIM MATHESON, Utah 

G.K. BUTTERFIELD, North Carolina 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

DONNA M. CHRISTENSEN, Virgin Islands 

KATHY CASTOR, Florida 

JOHN P. SARBANES, Maryland 

JERRY MCNERNEY, California 

BRUCE L. BRALEY, Iowa 

PETER WELCH, Vermont 

BEN RAY LUJAN, New Mexico 

PAUL TONKO, New York 

(III) 

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

JOHN SHIMKUS, Illinois 

Chairman 

PHIL GINGREY, Georgia 

Vice Chairman 

RALPH M. HALL, Texas 

ED WHITFIELD, Kentucky 

JOSEPH R. PITTS, Pennsylvania 

TIM MURPHY, Pennsylvania 

ROBERT E. LATTA, Ohio 

GREGG HARPER, Mississippi 

BILL CASSIDY, Louisiana 

DAVID B. MCKINLEY, West Virginia 

GUS M. BILIRAKIS, Florida 

BILL JOHNSON, Missouri 

JOE BARTON, Texas 

FRED UPTON, Michigan, ex officio 

PAUL TONKO, New York 

Ranking Member 

FRANK PALLONE, JR., New Jersey 

GENE GREEN, Texas 

DIANA DEGETTE, Colorado 

LOIS CAPPS, California 

JERRY MCNERNEY, California 

JOHN D. DINGELL, Michigan 

JANICE D. SCHAKOWSKY, Illinois 

JOHN BARROW, Georgia 

DORIS O. MATSUI, California 

HENRY A. WAXMAN, California, ex officio 

(V) 

C O N T E N T S 

MAY 17, 2013 

Page 

Hon. John Shimkus, a Representative in Congress from the State of Illinois, 

opening statement ................................................................................................ 1 

Prepared statement .......................................................................................... 3 

Hon. Paul Tonko, a Representative in Congress from the State of New York, 

opening statement ................................................................................................ 4 

Prepared statement .......................................................................................... 5 

Hon. John D. Dingell, a Representative in Congress from the State of Michigan, opening statement ....................................................................................... 6 

Prepared statement .......................................................................................... 7 

Hon. Henry A. Waxman, a Representative in Congress from the State of 

California, prepared statement ........................................................................... 148 

WITNESSES

Carolyn Hanson, Deputy Executive Director, Environmental Council of the 

States .................................................................................................................... 9 

Prepared statement .......................................................................................... 11 

Answers to submitted questions ...................................................................... 163 

Jeffery Steers, Director, Central Office Division of Land Protection and Revitalization, Virginia Department of Environmental Quality, on Behalf of 

the Association of State Territorial Solid Waste Management Officials ......... 22 

Prepared statement .......................................................................................... 25 

Daniel S. Miller, Senior Assistant Attorney General, Natural Resources and 

Environment Section, Colorado Department of Law ......................................... 34 

Prepared statement .......................................................................................... 36 

Answers to submitted questions ...................................................................... 165 

Abigail Dillen, Coal Program Director, Earthjustice ............................................ 54 

Prepared statement .......................................................................................... 56 

Answers to submitted questions ...................................................................... 167 

Thomas Duch, City Manager, Garfield, NJ ........................................................... 105 

Prepared statement .......................................................................................... 107 

SUBMITTED MATERIAL

Prepared statement of Hon. Mathy Stanislaus, Assistant Administrator, Office of Solid Waste and Emergency Response, U.S. Environmental Protection Agency ........................................................................................................... 111 

Answers to submitted questions ...................................................................... 169 

Discussion drafts ...................................................................................................... 135 

Letter of May 22, 2013, from public interest groups regarding RCRA and 

CERCLA to the Subcommittee, submitted by Mr. Shimkus ............................ 149 

Letter of May 22, 2013, from public interest groups regarding CERCLA 

to the Subcommittee, submitted by Mr. Shimkus ............................................. 157 

Letter of May 21, 2013, from Headwaters Resources, Inc. and Boral Material 

Technologies, Inc. regarding RCRA to the Subcommittee, submitted by Mr. 

Shimkus ................................................................................................................ 161 

MAY 22, 2013 

WITNESSES

David M. Bearden, Specialist in Environmental Policy for the Congressional 

Research Service .................................................................................................. 198 

Page

VI 

David M. Bearden, Specialist in Environmental Policy for the Congressional 

Research Service—Continued 

Prepared statement .......................................................................................... 202 

Answers to submitted questions ...................................................................... 251 

David Trimble, Director of Natural Resources and Environment, Government 

Accountability Office ............................................................................................ 208 

Prepared statement .......................................................................................... 210 

Answers to submitted questions ...................................................................... 263 

(1) 

FEDERAL AND STATE PARTNERSHIP FOR ENVIRONMENTAL PROTECTION ACT OF 2013; 

REDUCING EXCESSIVE DEADLINE OBLIGATIONS ACT OF 2013; AND FEDERAL FACILITY ACCOUNTABILITY ACT OF 2013 

FRIDAY, MAY 17, 2013 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY, COMMITTEE ON ENERGY AND COMMERCE

Washington, DC. 

The subcommittee met, pursuant to call, at 9:30 a.m., in room 

2123, Rayburn House Office Building, Hon. John Shimkus, (chairman of the subcommittee) presiding. 

Present: Representatives Shimkus, Whitfield, Pitts, Murphy, 

Latta, Harper, Cassidy, McKinley, Bilirakis, Johnson, Barton, 

Tonko, Green, McNerney, Dingell, Schakowsky, and Barrow. 

Staff Present: Nick Abraham, Legislative Clerk; Charlotte Baker, 

Press Secretary; Matt Bravo, Professional Staff Member; Jerry 

Couri, Senior Environmental Policy Advisor; David McCarthy, 

Chief Counsel, Environment/Economy; Brandon Mooney, Professional Staff Member; Tina Richards, Counsel, Environment; Chris 

Sarley, Policy Coordinator, Environment & Economy; Jacqueline 

Cohen, Minority Senior Counsel; Greg Dotson, Minority Staff Director, Energy and Environment; and Caitlin Haberman, Minority Policy Analyst. 

OPENING STATEMENT OF HON. JOHN SHIMKUS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ILLINOIS 

Mr. SHIMKUS. We call the hearing to order, and the chair recognizes himself for 5 minutes. Here in the Environment and Economy 

Subcommittee, our goal is to modernize some of the environmental 

laws that we oversee and make sure that the states are playing a 

significant role in implementing them. To do that, we began this 

Congress with a hearing on the role of states in protecting the environment. state environmental protection officials shared their experience and expertise with us and helped us better understand 

the complex partnership between states and the Federal Government as states implemented Federal laws such as the Solid Waste 

Disposal Act and EPA implements the Comprehensive Response 

Compensation and Liability Act, CERCLA, or the Superfund law, 

and the relation to state and environmental protection laws. 

Today we consider three bills that are a logical outgrowth of that 

discussion. One, the Federal Facility Accountability Act, would 

2 

bring CERCLA waiver of sovereign immunity into conformity with 

Solid Waste Disposal Act, and for that matter the Clean Air Act, 

by requiring that all Federal Superfund sites comply with the same 

state laws and regulations as a private entity. This is not a new 

concept. Legislation has been introduced previously by my friends 

across the aisle to ensure that Federal agencies comply with all 

federal and state environmental laws. 

The second bill, the Federal and state Partnership for Environmental Protection Act, does exactly what the title implies and 

would go a long way toward making the states partners with EPA 

in cleaning up hazardous waste sites. CERCLA is implemented by 

the EPA, but often states are in the best position to understand the 

sites in their state. This bill would allow states to play a larger role 

in the CERCLA process in several ways. The bill would allow 

states to list a site it believes needs to be on the National Priorities 

List every 5 years and would provide transparency to the states if 

they suggest a site for listing. The bill would also allow states to 

be consulted before EPA selects remedial action. The states are on 

the front lines, understand at the ground level how to prioritize in 

taking environmental action within their state, and they often 

come up with innovative solutions that better fit the local problem. 

We heard examples in our earlier hearing on the role of the 

states in protecting the environment. CERCLA is a key example of 

a statute passed more than 30 years ago that we are in the perfect 

position to now update, and to strengthen the federal-state partnership and get these sites cleaned up. Besides, the states are required to sink their money in these cleanup projects, and while we 

understand there are budget constraints at all levels of government, if states have a significant cost, they should have more of a 

say in how the cleanup money is spent. 

Continuing the theme of updating our environmental statutes 

passed in the 1970s and 1980s, the third bill, the Reducing Excessive Deadline Obligation, or the REDO Act of 2013, would give 

EPA flexibility by correcting a couple of arbitrary action deadlines 

that were written into the Solid Waste Disposal Act and CERCLA 

years ago. The mandate that EPA review and, if necessary, revise 

all RCRA regulations every 3 years has proven unnecessary and 

unworkable. The bill would allow the Administrator to review and, 

if necessary, revise regulations she thinks appropriate. It also reduces the requirement that only seems to be good for generating 

lawsuits against the EPA. In fact, they did some testimony, I would 

have people look at the testimony provided by the Environmental 

Protection Agency, and I quote that, ‘‘the current statutory provisions requiring review every 3 years can pose a significant resource 

burden on EPA, given the complexity and volume of EPA’s RCRA 

regulations.’’ So they are in agreement that this is overly burdensome and costly. 

Shimkus and the EPA on the same side. It is a beautiful thing. 

The bill also lists an action deadline in CERCLA requiring EPA 

to identify prior to 1984 classes of facilities for which to develop financial assurance regulations. More than 30 years passed without 

action from EPA. As we approach the 30th anniversary of the original deadline in CERCLA, a lawsuit and court order finally prompted EPA action of a few years ago; however, the states have long 

3 

since acted, putting in place strong financial assurance requirements of their own. That is why the bill also provides that if EPA 

does get around to establishing Federal financial assurance regulations, the state requirements should not be preempted. 

We regret that it was not possible for a friend of this committee, 

Mr. Stanislaus, Assistant Administrator of the EPA, to be with us 

today, but as I quoted, we have his written statement and we will 

consult with him and his staff as these bills move through the legislative process. 

Throughout that process, we also welcome suggestions from our 

witnesses today and other experts in the field, and that is why we 

are having this legislative hearing. 

I want to lastly thank our witnesses for being with us today, and 

appreciate your willingness to travel to Washington to share your 

opinions on the three bills before us. 

With that, the chair now recognizes the gentleman from New 

York, Mr. Tonko. 

[The prepared statement of Mr. Shimkus follows:] 

PREPARED STATEMENT OF HON. JOHN SHIMKUS

Here in the Environment and the Economy Subcommittee our goal is to modernize some of these environmental laws that we oversee and make sure the states 

are playing a significant role in implementing them. To do that, we began this Congress with a hearing on the role of the states in protecting the environment. state 

environmental protection officials shared their experience and expertise with us and 

helped us better understand the complex partnership between the states and the 

federal government as states implement federal laws, such as the Solid Waste Disposal Act and EPA implements the Comprehensive Response, Compensation, and 

Liability Act (CERCLA or Superfund law), and the relation to state environmental 

protection laws. 

Today we consider three bills that are a logical outgrowth of that discussion. 

One, the Federal Facility Accountability Act, would bring the CERCLA waiver of 

sovereign immunity into conformity with the Solid Waste Disposal Act and for that 

matter, the Clean Air Act, by requiring that all federal superfund sites comply with 

the same state laws and regulations as a private entity. This is not a new concept. 

Legislation has been introduced previously by my friends across the aisle to ensure 

that federal agencies comply with all federal and state environmental laws. 

The second bill, ‘‘The Federal and state Partnership for Environment Protection 

Act’’ does exactly what the title implies and would go a long way toward making 

the states partners with EPA in cleaning up hazardous waste sites. CERCLA is implemented by EPA, but often states are in the best position to understand the sites 

in their state. This bill would allow states to play a larger role in the CERCLA process in several ways. The bill would allow states to list a site it believes needs to 

be on the National Priorities List every five years and would provide transparency 

to the states if they suggest a site for listing. 

The bill would also allow states to be consulted before EPA selects a remedial action. The states are on the front lines and understand at the ground level how to 

prioritize in taking environmental action within their state and they often come up 

with innovative solutions that better fit the local problem. We heard examples in 

our earlier hearing on the ‘‘Role of the states in Protecting the Environment.’’ 

CERCLA is a key example of a statute passed more than 30 years ago that we are 

in the perfect position to now update and strengthen the federal-state partnership 

and get these sites cleaned up. 

Besides, the states are required to sink their own money in these cleanup projects 

and while we understand there are budget constraints at all levels of government, 

if states have a significant cost they should have more of a say in how the cleanup 

money is spent. 

Continuing the theme of updating environmental statutes passed in the 70s and 

80s, the third bill, ‘‘the Reducing Excessive Deadline Obligations (REDO) Act of 

2013’’ would give EPA flexibility by correcting a couple of arbitrary action deadlines 

that were written into the Solid Waste Disposal Act and CERCLA years ago. The 

mandate that EPA review and, if necessary, revise all RCRA regulations every three 

4 

years has proven unnecessary and unworkable. The bill would allow the administrator to review and, if necessary, revise regulations as she thinks appropriate. It 

also reduces a requirement that only seems to be good for generating lawsuits 

against EPA. 

The bill also lifts an action deadline in CERCLA requiring EPA to identify, prior 

to 1984, classes of facilities for which to develop financial assurance regulations. 

More than 30 years passed without action from EPA. As we approach the 30th Anniversary of the original deadline in CERCLA, a lawsuit and court order finally 

prompted EPA action a few years ago. However, the states have long since acted, 

putting in place strong financial assurance requirements of their own. That is why 

the bill also provides that if EPA does get around to establishing federal financial 

assurance regulations, the states requirements would not be preempted. 

We regret that it was not possible for a friend of this committee, the Honorable 

Mathy Stanislaus, Assistant Administrator of EPA, to be with us today, but we welcome his written statement and will consult with him and his staff as these bills 

progress through the legislative process. Throughout that process we also welcome 

suggestions of our witnesses today and of other experts in the field. 

I want to lastly thank our witnesses for being with us today and appreciate their 

willingness to travel to Washington to share your opinions on the three bills before 

us. 

# # # 

OPENING STATEMENT OF HON. PAUL TONKO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK 

Mr. TONKO. Thank you, Mr. Chairman. Good morning to our witnesses. 

And let me begin by saying how pleased I am that we were able 

to come to an agreement and that we will have an opportunity to 

receive testimony on the Superfund program from additional witnesses before we mark up our bills. I appreciate your willingness 

to accommodate the desire of the subcommittee members to hear 

from witnesses about the current status of this program. 

The Comprehensive Environmental Response Compensation and 

Liability Act, commonly known as Superfund, is an important statute guiding the cleanup of contaminated sites throughout our country. It is fair to say that this law had a rough start. Over the years, 

it has been shaped by amendments, agency guidance, regulations 

and extensive litigation. Much of the dust has now settled. Cleanups are proceeding across the country. Many communities are safer 

as a result of this law, and contaminated, abandoned sites have 

been returned to productive reuse. 

I want to thank the witnesses for appearing before our subcommittee this morning and for offering their views on the three 

bills before the subcommittee. 

Mr. Chair, you characterized the bill as reforms to Superfund, 

and I am new to the committee but not new to the contamination 

problems that Superfund was enacted to address. ‘‘Simple’’ is not 

an adjective I usually associate with Superfund, and I hope we are 

not embarking on an effort that will negate the progress we have 

made on site cleanups and the reuse of brown fields. 

One bill we will consider today, for instance, is couched as legislation designed to repeal so-called, I quote, excessive deadlines. 

Section 2 of this bill appears to be designed to block a lawsuit from 

coal ash recyclers to bring some certainty to their markets. Those 

recyclers have gone to court over EPA’s failure to meet a statutory 

deadline that they say has, and I quote, constrained the recycling 

5 

of coal ash with the attendant result of wasted resources, adverse 

economic impacts, and increased environmental impacts that would 

otherwise be avoided through beneficial reuse, close quote. 

Many of us support the beneficial reuse of coal ash, which is 

what the coal ash recycling industry does. This industry has gone 

to court to protect their rights and seek a legal remedy for their 

plight. We should not throw their case out of court by legislative 

fiat. 

Other provisions we will consider today will delay cleanups in 

favor of litigation, will decrease the funding available for cleanup 

efforts, and will divert resources so that the most dangerous contaminated sites are not cleaned up first. 

There are many questions that surround these bills. They may 

delay efforts to adopt financial responsibility requirements for environmentally damaging mining and they could preempt those requirements once adopted, but again I look forward to hearing what 

everyone has to share with us today. 

And with that, I yield back, Mr. Chair. 

[The prepared statement of Mr. Tonko follows:] 

PREPARED STATEMENT OF HON. PAUL TONKO

Good morning. 

Mr. Chairman, I am pleased that we were able to come to an agreement, and that 

we will have an opporiunity to receive testimony on the Superfund program from 

additional witnesses before we markup these bills. I appreciate your willingness to 

accommodate the desire ofthe Subcommittee members to hear from witnesses about 

the current status of this program. 

The Comprehensive Environmental Response, Compensation, and Liability Act— 

commonly known as Superfund—is an important statute guiding the cleanup of contaminated sites throughout the country. 

It is fair to say, this law had a rough start. Over the years, it has been shaped 

by amendments, Agency guidance, regulations, and extensive litigation. Much of the 

dust has now settled. Cleanups are proceeding across the country. Many communities are safer as a result of this law. And contaminated, abandoned sites have 

been returned to productive use. 

I want to thank the witnesses for appearing before our Subcommittee this morning and for offering their views on these three bills. 

Mr. Chailman, you characterized the bills as simple reforms to Superfund. I am 

new to the Committee, but not new to the contamination problems that Superfund 

was enacted to address. ‘‘Simple’’ is not an adjective I usually associate with Superfund. I hope we are not embarking on an effort that will negate the progress we 

have made on site cleanups and reuse of brown fields. 

One bill we will consider today is couched as legislation designed to repeal socalled ‘‘excessive deadlines.’’ Section 2 of this bill appears to be designed to block 

a lawsuit from coal ash recyclers to bring some certainty to their markets. Those 

recyclers have gone to court over EPA’s failure to meet a statutory deadline that 

they say has ‘‘constrain[ed] the recycling of [coal ash], with the attendant result of 

wasted resources, adverse economic impacts, and increased environmental impacts 

that would otherwise be avoided through beneficial reuse.’’ 

Many of us support the beneficial reuse of coal ash, which is what the coal ash 

recycling industry does. This industry has gone to court to protect their rights and 

seek a legal remedy for their plight. We should not throw their case out of court 

by legislative fiat. 

Other provisions we will consider today will delay clean-ups in favor of litigation, 

will decrease the funding available for clean-up efforts, and will divert resources so 

that the most dangerous contaminated sites are not cleaned up first. 

I have many questions about these bills. They may delay efforts to adopt financial 

responsibility requirements for environmentally-damaging mining, and they could 

preempt those requirements once adopted. 

Mr. Chairman, the basic policy behind Superfund is that polluters should pay to 

clean up their pollution. I think we should be very careful about potentially creating 

new avenues for litigation that can allow polluters to delay cleanups and argue for 

6 

weaker protections. They have a financial incentive to do so, but that does not align 

with the public interest. 

I appreciate the opportunity for the Subcommittee to examine the Superfund Program. The citizens living in communities with these sites are anxious to have them 

cleaned up and returned to safe, productive use. The responsible parties, whether 

public or private, want to accomplish those clean-ups in a cost-effective manner. 

These are goals we can all support, and the lens through which we should consider 

these three bills. 

Mr. SHIMKUS. The gentleman yields back his time. Is there anyone on my side seeking time for an opening statement? 

The chair now recognizes the Chairman Emeritus, Mr. Dingell, 

for 5 minutes. 

OPENING STATEMENT OF HON. JOHN D. DINGELL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN 

Mr. DINGELL. Mr. Chairman, thank you for your courtesy. I am 

giving a statement on behalf of myself, but I am using Mr. Waxman’s time. 

I have some familiarity with the subject matter before us today 

since I have chaired both the committee and the conference committee which lasted some 8 months when we considered the Superfund Amendments and Reauthorization Act of 1986. For many of 

the members of this subcommittee on both sides of the aisle that 

were not in the Congress in 1986, I would like to recall some of the 

events of that legislative effort resulting in the 1986 act and to describe the result of more than 3 years of legislative hearings and 

5 years of oversight hearings. 

The issue was enormously complex and bitterly controversial. It 

was also a fully bipartisan effort on the committee, and we worked 

very closely with the Reagan administration, which I saw was 

present at all the conference meetings. And the then chairman— 

rather, the then head of EPA was of valuable assistance to the 

committee and the conference committee in writing the final legislation. The Senate at that time was under Republican control. 

President Reagan signed the act on October 17, 1986, after overwhelming votes of 386 to 27 in the House and 88 to 8 in the Senate. 

One of the interesting things about that was my difficulty was 

to see to it that the legislation was considered in a balanced and 

thoughtful way, but the pressures ofttimes were to go too far. 

I am unaware that this committee has, or any of the subcommittees have conducted any oversight that has identified problems necessitating the amendments before us today. I believe every member of this committee can point out things that need to be done 

with regard to the legislation. I have some of my own. 

The Superfund program, after a rocky start, has become a very 

successful and an enormously important public health program, 

cleaning up some devastatingly dangerous situations all around the 

country. And I would note that some of the worst difficulties that 

that agency confronts in administering this legislation is that there 

is no money. We have been both stingy in seeing to it that appropriated funds are available, but worse than that, we have allowed 

the tax revenues, which funded the original Superfund, to dry up 

7 

so the money is not available to see to it that the matter is properly handled. 

And these are hideously technical and politically difficult questions. And I would suggest that before heading headlong into the 

resolution of problems that don’t find any support in a factual 

record at this time, that the committee should gather the evidence 

from the states, from EPA, from local governments, from industry, 

and I think industry’s comments will be very important, from the 

communities and from ordinary citizens so that we can understand 

what, if any, problems need to be addressed and how the 

interlocked and difficult questions, political, technical, environmental and financial, work together. 

And I think that the tools necessary to ensure that Federal sites 

are properly listed and expeditiously cleaned up are available to us 

and can be perfected by a thoughtful and a decent approach to the 

legislation before us. And we can understand then perhaps why it 

has taken more than 25 years of fighting on all of these matters 

to establish financial responsibility requirements for industries 

that deal in hazardous substances. 

My district is an industrial district where we have large numbers 

of old industrial sites, and these curse us all and require enormous 

amounts of effort, cooperation and understanding for us to solve 

the problems and clean them up, but we are making progress, and 

we will continue to do so if we don’t screw these matters up by legislating in an unwise and irresponsible fashion. 

I hope that my colleagues will try to understand the purpose of 

this hearing and the purpose of legislation and legislative change. 

And these are more than just to provide work for us or work for 

the staffs. And I think we have to worry, because the committee, 

or the subcommittee, seems to be doing well in creating a lot of 

staff work, but not a lot of thoughtful effort or understanding of the 

problems so that we can legislate well. 

This is a massive health problem, a massive environmental concern, it is a tremendous financial problem, and it is something that 

does need our attention, but that attention must be thoughtful, it 

must be considerate of the concerns of everybody, but it must also 

address the question of facts and what really has to be done to 

achieve a balanced and perfected approach to this matter in which 

we will do the job better than we did the first time. 

I yield back the balance of my time. 

[The prepared statement of Mr. Dingell follows:] 

PREPARED STATEMENT OF HON. JOHN D. DINGELL

Mr. Chairman, I have some familiarity with the subject matter before the Subcommittee today since I chaired the eight month long conference committee that resulted in the Superfund Amendments and Reauthorization Act of 1986. With one 

exception, the discussion draft amendments before the Subcommittee today are 

seeking to amend that Act. 

For the many members on the Subcommittee on both sides of the aisle where 

were not in the Congress in 1986, I wish to inform them that legislative effort resulting in the 1986 Act was the result of more than three years of legislative hearings and five years of oversight hearings. It was a fully bipartisan effort on the 

Committee and we worked very closely with the Reagan Administration which was 

present at all conference meetings. The Senate, at the time, was under Republican 

control. President Reagan signed the Act on October 17, 1986 after overwhelming 

votes of 386–27 in the House and 88–8 in the Senate. 

8 

I am unaware that this Subcommittee has conducted any oversight that has identified problems necessitating the amendments before us today. The Superfund program, after a rocky start, has become a very successful and important public health 

program. At the non-federal Superfund National Priority Sites, the program completed all necessary construction activities at over 70 percent of the sites. At thousands of other sites, emergency or shorter-term removal actions have been completed. 

Many of these amendments appear unnecessary and are without a factual basis 

or predicate. Others, such as the amendment to Section 113(h) of CERCLA, expand 

the opportunities for litigation before protective cleanup measures are taken. Such 

actions will delay cleanup for years while a federal judge sorts through the technical 

merits of a selected cleanup remedy. In 1986, the Conference Committee adopted 

a policy to put cleanups before lawsuits so communities would have relief while preserving the right to challenge agency action of the cleanup did not meet legal requirements or relevant standards. 

If states had the capacity or financial ability to clean up these most seriously contaminated sites they would not be on the National Priorities List. states always 

have the first crack at cleaning up sites. To authorize lawsuits between the states 

and the federal government before cleanup is a fine idea if your goal is more litigation and lengthy cleanup delays—all coming at the expense of citizens and communities living nearby the site. 

A number of the amendments seem to rest on the premise that EPA and state 

agencies are not communicating with each other. Where is the evidentiary record 

in support? These amendments appear to be solutions in search of a problem. I call 

my colleagues attention to Section 121(f) of the existing statute which sets forth in 

detail requirements for ‘‘substantial and meaningful involvement by each state in 

initiation, development, and selection of remedial actions.’’ 

Then there is an amendment in an amendment to Section 108. In this section, 

Congress wanted EPA to establish financial responsibility requirements for various 

classes of facilities so they would ‘‘maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances.’’ The agency has 

been extremely dilatory in implementing this provision. However, instead of calling 

EPA to task for failing to act, my republican colleagues’ only goal seems to be to 

eliminate the one provision that was a mandatory duty forcing EPA to initiate action. 

Before charging headlong into solving problems that are not backed up with a factual record, I recommend this Subcommittee gather a body of evidence from EPA, 

states, local governments, industry, and communities to better understand what, if 

any, problems need to be addressed regarding the state-federal relationship, the 

tools necessary to ensure federal sites are properly listed and expeditiously cleaned 

up, and why it has taken more than 25 years to establish financial responsibility 

requirements for industries that deal in hazardous substances. I fail to understand 

the purpose of this hearing or legislation other than to provide work for its members 

and staff. On that point, the Subcommittee has succeeded wonderfully. 

Mr. SHIMKUS. The gentleman yields back his time. And I would 

just quickly note that, you know, I am not a spring chicken on this 

committee either, and my first piece of legislation was a response 

to the Superfund. When we got small business out of the liability 

regulations, the de minimis parties, and that was a successful piece 

of legislation that we were able to pick out what was wrong and 

how we could fix it and the like. And I would just refer folks to 

the EPA’s testimony where it says, the current statutory provisions 

requiring review every 3 years can pose a significant resource burden on the EPA, given the complexity and volume of EPA’s RCRA 

regulations. So it is not just us; it is even the EPA saying that this 

might be helpful. 

So with that, I would like to recognize and welcome our witnesses, and I will just go in order. I already talked to you about 

votes being called soon. We will get through as many witnesses as 

we can, so then we can come back and go back to questions. 

9 

So first I would like to welcome Ms. Carol Hanson, Deputy Executive Director at Environmental Councils of the states. Your full 

testimony’s in the record, and you are recognized for 5 minutes. 

STATEMENTS OF CAROLYN HANSON, DEPUTY EXECUTIVE DIRECTOR, ENVIRONMENTAL COUNCIL OF THE STATES; JEFFERY STEERS, DIRECTOR, CENTRAL OFFICE DIVISION OF 

LAND PROTECTION AND REVITALIZATION, VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY, ON BEHALF OF 

THE ASSOCIATION OF STATE TERRITORIAL SOLID WASTE 

MANAGEMENT OFFICIALS; DANIEL S. MILLER, SENIOR ASSISTANT ATTORNEY GENERAL, NATURAL RESOURCES AND 

ENVIRONMENT SECTION, COLORADO DEPARTMENT OF LAW; 

ABIGAIL DILLEN, COAL PROGRAM DIRECTOR, 

EARTHJUSTICE; AND THOMAS DUCH, CITY MANAGER, GARFIELD, NJ 

STATEMENT OF CAROLYN HANSON 

Ms. HANSON. Thank you. Thank you for inviting me here today 

to talk about our organization’s views on the bills before the committee. I am representing the Environmental Council of the states, 

or ECOS, whose members of the leaders of the state and territory—— 

Mr. SHIMKUS. Can you pull your microphone just a little bit closer and maybe lift it up? 

Ms. HANSON. Sorry. 

Mr. SHIMKUS. And pull it closer. There you go. 

Ms. HANSON. I am representing—it is not staying on. There we 

go. 

I am representing the Environmental Council of the states, 

ECOS, whose members are the leaders of the state and territorial 

environmental protection agencies. My main points today are, first, 

that ECOS supports concepts found in the three bills addressing 

RCRA and CERCLA issues. Second, in particular, ECOS supports 

the expansion of consultation with states as described in the bills, 

and also that ECOS especially acknowledges that the bills directly 

address concerns expressed by the states in two of ECOS’s resolutions on Federal facilities’ operations under RCRA and CERCLA. 

These resolutions were attached to our written testimony. 

We are pleased that the committee has taken an interest in addressing RCRA and CERCLA in a manner that focuses on implementation issues that states and EPA regularly face. We are in an 

era where funds to implement our Nation’s environmental statutes 

are tight, but the sites needing remediation these days are more 

complex than when the program started. We are in need of flexibility and efficiency more than ever both at the state and Federal 

level. 

Overall, we support the changes that these bills seek and we believe they will improve the implementation of RCRA and CERCLA 

and help achieve the goals of those statutes more quickly. 

First I will address the bill entitled the Reducing Excessive 

Deadline Obligations Act of 2013. Simply put, this bill allows EPA 

to emphasize the administrative priorities that warrant its attenVerDate Nov 24 2008 12:31 Nov 15, 2013 Jkt 037690 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-43 CHRIS
10 

tion and to establish in statute a longstanding practice at EPA regarding matters that it may undertake at its discretion. 

The next bill I will address is entitled the Federal and state 

Partnership for Environmental Protection Act of 2013. The first 

part of this bill addresses consultation with the states. ECOS 

strongly approves this section, which addresses issues outlined in 

several ECOS resolutions. The second part of this bill addresses 

state credit for other contributions. It is our understanding that 

this bill does not expand the state’s cost share for removal actions 

beyond what is currently required, and our comments are made 

with this understanding. This change will greatly assist during this 

time of tight budgets and should help move these projects along 

more quickly. Furthermore, assuming the legislation does not intend to create an additional cost share in removal actions, ECOS 

supports the legislation, because if a state performed an action, 

such as site stabilization, that the EPA later classified as a removal action, then there may be an opportunity to get credit for 

those state expenditures. 

We also endorse Section 4. Placing the site on the National Priority List is important to a state, as its action must go all the way 

to the Governor’s office. ECOS believes that EPA’s policy has been 

to seek state concurrence when listing a site for the NPL; however, 

this is a policy, and we believe the nation would be better served 

if it were a requirement. 

The last bill I will discuss is the Federal Facility Accountability 

Act of 2013. ECOS is especially pleased to see the committee address this longstanding issue. This bill directly addresses the concerns ECOS described in two of our resolutions. ECOS believes this 

legislation will help states assure environmental compliance on 

current and former Federal facilities. 

The most important aspect of this legislation is that it sends a 

strong and appropriate message to all Federal agencies: you must 

follow the Nation’s environmental rules the same as everyone else. 

The legislation amends CERCLA to eliminate most, if not all, of 

the barriers that states have experienced in dealing with Federal 

agency compliance with the act. It is especially useful to states to 

see that compliance and cost sections change to conform with the 

experiences that non-Federal entities face every day. 

Finally, we support the ability for a state to request a review by 

EPA to ensure consistency of some Federal action with the guidelines, rules, regulations or criteria established by EPA under Title 

I of CERCLA. The section closes a potential loophole in advance. 

In summary, ECOS sees that these bills will assist in many 

ways, including holding Federal facilities to the same standards as 

other regulated entities, clarifying regulations and procedures, improving state-Federal communications, improving cleanup financing, and implementing state EPA concurrence on how to treat 

Superfund sites, to name a few. 

Mr. SHIMKUS. Thank you. 

[The prepared statement of Ms. Hanson follows:] 

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Mr. SHIMKUS. The chair now recognizes Mr. Jeffery Steers, Director of Central Office Division of Land Protection and Revitalization 

from the Virginia Department of Environmental Quality, on behalf 

of the Association of state Territorial Solid Waste Management Officials. Sir, welcome. 

STATEMENT OF JEFFERY STEERS 

Mr. STEERS. Good morning. And thank you, Mr. Chairman, and 

members of the subcommittee for allowing ASTSWMO, the Association of state and Territorial Waste Management Officials, to testify 

before you today regarding these three bills. 

states value the relationship that we currently have with U.S. 

EPA, and together, through several types of cooperative agreements both as individual states and as an association, continue to 

make great strides in addressing some of the most contaminated 

land in the United states. While we can all agree that the Superfund program has success stories, 30 years of use necessitates some 

changes and updating. The decisions made by Congress and EPA 

can have a profound impact on state resources. 

states share a common goal with the Federal Government in ensuring that risks to human health and the environment are mitigated and appropriately addressed. Our association is committed to 

ensuring that this is done in an efficient, cost-effective manner, and 

I will briefly summarize our position on each specific bill. 

With respect to the Reducing Deadline Obligations Act of 2013, 

we support this bill. Specifically our interests surrounds the proposals that allow the individual states to maintain financial assurance requirements already in place so as not to allow Federal preemptions to override state financial assurance programs. Member 

states have enacted robust financial assurance requirements for 

various classes of facilities and other types of facilities under 

RCRA. The impacts of any new Federal requirement must be carefully coordinated and evaluated in the context of existing state laws 

and obligations. 

ASTSWMO supports the provisions proposed in the Federal and 

State Partnership for the Environmental Protection Act of 2013, especially with respect to fund lead sites placed on the National Priorities List. Our members continue to be challenged with skyrocketing financial obligations, which include 10 percent cost share 

of the remedial action, and O&M in perpetuity. EPA consultation 

with states on removal actions, listing to the NPL and on remedy 

selection doesn’t, in fact, occur regularly. The end result of this consultation is often problematic and inconsistently used across the 

EPA regions. The states have no interest in delaying emergency or 

time critical removal actions, for example; however, non-time critical removal actions are not viewed as urgently, and state concurrence and development of a plan for the status of some of these 

sites after a removal action is taken are needed. 

With respect to NPL listing, ASTSWMO supports greater consistent consideration by EPA relative to state obligations to inclusion on the NPL. states are under a significant pressure to just 

concur with individual listing decisions. CERCLA authority is one 

tool to address contaminated lands. As states evaluate proposals 

for listing, we look for other opportunities, including economic redeVerDate Nov 24 2008 12:31 Nov 15, 2013 Jkt 037690 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-43 CHRIS
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velopment opportunities, to help drive cleanups. Oftentimes there 

is a prospective purchaser willing to adequately mitigate the environmental and human health risks on a contaminated property, 

provided they have future certainty and avoid the stigma of Superfund. state voluntary programs can in many circumstances serve as 

a substitute for the long and costly CERCLA Superfund process. 

states should not be pressured into accepting at face value a listing on the NPL, especially where the fund is being used and resulting in significant state resources. 

The provisions of this bill that seek to give states the ability to 

add sites to the NPL is fully supported by ASTSWMO. While there 

may be a perceived notion that there are dozens of state priorities 

that would be suggested for listing, this is simply not the case. 

states recognize the limited resources that we all have and understand that we have complex sites that have—we need to get the 

biggest bang for the buck. 

ASTSWMO strongly supports a process for more concurrence 

with selected remedies, especially at fund lead sites. Many of our 

member states have sophisticated programs, and we can offer the 

technical fire power that ensures remedies will be effective. All too 

often we come across sites that are turned over to the states that 

are nothing more than a pig in a poke and the state is responsible 

for the long-term care. 

An example of a $100,000 problem that our state and other 

states have seen is something as simple as piping that was clogged 

and was not able to be properly maintained during the time that 

EPA had a site under its control, and the state took the site over 

and had to re-fix a lot of the problems. 

We strongly support the Federal Accountability Act of 2013. No 

entity, whether privately or publicly owned, should be given special 

treatment when it comes to protecting human health and the environment. Federal agencies playing the sovereign immunity card 

only serve to delay and put citizens in harm’s way. states continue 

to believe that the Federal Government should be accountable to 

adherence with CERCLA, similar to what is required under the 

Clean Air Act, Clean Water Act and RCRA. 

The universe of sites subject to CERCLA includes properties 

owned by Federal, state and local governments and private entities. The protection of our citizens should not be seen not through 

the color of ownership. Many states and localities are also limited 

with the resources that they can bring to bear, so we all need to 

work together in our obligations. 

It is inherently wrong for the Federal Government to shirk its responsibilities due to cost considerations. It is important that Federal facilities and agencies be accountable to the same requirements as all other regulated entities, including state-specific requirements to ensure equal treatment and protection under the 

law. 

In closing, let me just say that the CERCLA process is complex 

and we ought to take a page from business where they look at processes and quality improvement and using things such as value 

stream mapping and lien to look at the national contingency plan 

in the way that Superfund is managed. 

24 

I would like to thank you again for allowing me the opportunity 

to speak before you, and I will be available to answer any questions. 

Mr. SHIMKUS. Thank you. 

[The prepared statement of Mr. Steers follows:] 

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Mr. SHIMKUS. The chair now recognizes Mr. Dan Miller, Senior 

Assistant Attorney General, Natural Resources and Environmental 

Section of the Colorado Department of Law. Sir, you are welcome; 

you are recognized for 5 minutes. 

STATEMENT OF DANIEL S. MILLER 

Mr. MILLER. Thank you, Mr. Chairman, members of the subcommittee. I am here today on behalf of the Hazardous Materials 

and Waste Management Division of the Colorado Department of 

Public Health and Environment. That is the agency that works 

with EPA in implementing the Superfund program and it also implements the state equivalent of RCRA. 

My written statement addresses all three bills, but—— 

Mr. SHIMKUS. If you can just pull that—just bend it so the mike’s 

closer to your mouth. There you go. 

Mr. MILLER. My written statement addresses all three bills, but 

due to time limits, I will probably just be able to focus on sovereign 

immunity and state rule and remedy selection today. 

The Federal Facility Accountability Act broadens the CERCLA 

sovereign immunity waiver, a change Colorado and other states 

have long supported. There is simply no reason why Federal agencies should be above the law. Private entities have to clean up their 

mess, states and cities have to clean up their mess. There is no 

reason Federal agencies should be any different, especially since 

they have some of the most contaminated sites in the country, yet 

Federal agencies have relied on the current wording of the 

CERCLA waiver to argue that they are immune from the application of state laws at sites that they once contaminated but no 

longer own. They have also used it to argue that state laws do not 

apply at Federal facilities that are listed on the Superfund National Priorities List. 

On a cursory review, the bill before us appears to resolve these 

concerns; however, sovereign immunity is a very complex area of 

the law and we would welcome the opportunity to work with the 

committee—subcommittee and the committee to be sure that the 

proposed bill really does accomplish its intended purpose and addresses the issues that the states commonly face in cleaning up 

Federal facilities. 

One of these issues that I would like to call out is Federal agency 

reluctance to comply with what is known as state institutional control laws, laws like environmental covenant laws. These are legal 

mechanisms that restrict land use at remediated sites and help 

limit exposure to residual contamination or protect the engineered 

components of a remedy. We don’t have any problem getting private entities to comply with these laws, but Federal agencies have 

long resisted their application. 

Turning to the state role in CERCLA remedy selection, our main 

concern is that CERCLA’s cost sharing structure creates incentives 

for EPA to choose remedies that cost less for the initial cleanup at 

the expense of more costly long-term maintenance. Under the current statute and regulations, EPA pays 90 percent of upfront remedy costs and states pay the remaining 10 percent, but after 10 

years states have to pay all of the operation and maintenance 

costs, which can be substantial. At historic mining sites, for examVerDate Nov 24 2008 12:31 Nov 15, 2013 Jkt 037690 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-43 CHRIS
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ple, EPA remedies often rely on water treatment plants that must 

essentially be operated in perpetuity. These plants may cost millions of dollars a year to run. Over the decades, these operation 

and maintenance costs will eventually overwhelm the amount of 

money that was spent on the remedy and change the fundamental 

balance of the Superfund program cost share from predominantly 

Federal to predominantly state funded. 

A second concern we have is that EPA and other Federal agencies implementing CERCLA sometimes resist Colorado’s efforts to 

have its state laws designated as ARARs, the CERCLA term for 

cleanup standards that a particular cleanup has to meet. Once 

again a common area of dispute is the state’s environmental covenant law, which is frequently ignored in removal actions and 

sometimes even at remedial actions. 

With these concerns in mind, let’s turn to the Federal and state 

Partnership for Environmental Protection Act. Section 2 emphasizes CERCLA’s existing mandate that EPA consult with affected 

states in remedy selection. While we agree that EPA certainly 

sometimes views its obligation to consult rather narrowly, we are 

concerned, based on our understanding of the congressional process, that because this bill proposes to amend Section 104 and Section 120, it could open the door to other more controversial amendments to these sections. Perhaps there is a procedural way to limit 

the scope of any amendments. 

Section 5 of the bill creates a new exception to CERCLA’s bar on 

pre-enforcement judicial review of remedies. This is one of the key 

provisions of the statute. The pre-enforcement bar prevents litigation from delaying needed cleanup actions. The proposed amendment undermines this fundamental protection by allowing any person to challenge a remedy before implementation whenever a state 

has simply objected in writing to the proposed remedy. 

We don’t think this is the proper response to address the concerns we have cited above. Instead, we would address a concern 

about the fiscal impact to states of expensive long-term O&M by 

revisiting the cost sharing allocation in the statute and regulations. 

If legislation is needed to address the concern that EPA doesn’t 

consistently recognize state laws as ARARs or otherwise limits 

state input on cleanup decisions, it should be possible to craft a 

narrow legislative solution that does not undermine the bar on preenforcement judicial review. 

Thank you. 

Mr. SHIMKUS. Thank you. 

[The prepared statement of Mr. Miller follows:] 

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Mr. SHIMKUS. The chair now recognizes Ms. Abigail Dillen, Coal 

Program Director from Earthjustice. 

STATEMENT OF ABIGAIL DILLEN 

Ms. DILLEN. Thank you. Good morning, Chairman Shimkus, and 

members of the subcommittee. Thank you for the opportunity to 

offer testimony this morning. I will be addressing the proposed 

amendment of RCRA, Section 2002(b) under the Reducing Excessive Deadline Obligations Act of 2013. 

I am Abigail Dillen. I direct the Coal Program at Earthjustice 

and I am also a managing attorney there. Earthjustice is a nonprofit public interest law firm dedicated to protecting the environment. 

RCRA, Section 2002(b) provides for periodic review and revision 

of the regulations implementing RCRA, as you know. And to be 

clear, the Environmental Protection Agency always enjoys the discretion to determine when revisions are necessary. As this provision is currently written, it strikes a careful balance, ensuring that 

regulations are updated to address evolving waste management 

issues while still leaving EPA broad discretion to manage RCRA 

programs as it sees fit and determine regulatory priorities. 

This bill would upset that balance in order to derail three parallel lawsuits that were filed to compel an EPA decision on badly 

needed regulation of coal ash and other waste from coal-fired power 

plants. 

As EPA acknowledges, regulation of coal ash is already long 

overdue, but the agency continues to delay issuance of final regulations. This delay is harming the many communities around the 

country that are contending with water contamination, fugitive ash 

dust and the risk of catastrophic collapse of ash impoundments in 

the absence of effective safeguards. 

At the same time, ongoing regulatory uncertainty is bad for business, according to the coal ash recycling industry. And that is why 

the ash recycling industry and conservation groups are both suing 

under Section 2002(b) to prompt overdue action by EPA. This bill 

would deliberately undercut those lawsuits, leaving coal ash regulated indefinitely. More broadly, it would upset a longstanding statutory scheme for updating RCRA that has never proven to be unworkable. 

This bill’s supporters are claiming that current law requires EPA 

to review or promulgate regulations within time frames that have 

proven unworkable and that this provision has, quote, only led to 

lawsuits for failure to meet these deadlines. However, in the 37 

years since Congress established Section 2002(b), a total of three 

lawsuits have been filed, and those are the three lawsuits pertaining to regulation of coal ash. One has been brought by conservation groups represented by Earthjustice. And, again, the others have been brought by Headwaters Resources and Boral Material Technologies, two of the leading companies that market coal 

ash to make commercially valuable building products. 

The transparent intent of this bill is to undercut these lawsuits 

and prevent a Federal court from imposing needed deadlines: one, 

for coal ash regulations that EPA has acknowledged are needed; 

and, two, for a decision on the threshold question whether coal ash 

55 

should be regulated as a hazardous waste under RCRA, subtitle (c) 

or as a solid waste under RCRA, subtitle (d). 

I want to underscore, it is simply not the case that this deadline 

has ever proven unworkable. And to Chairman Shimkus, your 

point about EPA’s testimony, we have not had the benefit of seeing 

it yet, but I am not surprised the agency is eager to avoid any 

deadlines whenever possible. Of course it is an agency that contends with many deadlines, but if there is one thing that many of 

us can agree upon in this room is that without deadlines, work 

doesn’t get done. 

And I can’t overstate the importance of addressing longstanding 

environmental harms that are associated with the regulatory failure to address coal ash. In 2000, 13 years ago, following years of 

study in the 1990s, EPA concluded that establishment of national 

standards under RCRA, subtitle (d) was necessary, quote, to ensure 

a consistent level of protection of human health in the environment. But in the 13 years since EPA made that formal finding, 

EPA has yet to undertake any of the requisite regulatory revisions 

that are needed to end the unsafe dumping of coal ash. This delay 

poses an unacceptable threat to the environment and it perpetuates regulatory uncertainty that is unacceptable to the ash recycling industry. 

In short, this bill would eliminate a statutory provision that has 

operated for 37 years without incident, only to exacerbate the problems caused by EPA’s inexcusable delay in regulating coal ash. 

Thank you. 

Mr. SHIMKUS. Thank you. 

[The prepared statement of Ms. Dillen follows:] 

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Mr. SHIMKUS. The chair now recognizes Mr. Thomas Duch, City 

Manager, city of Garfield, New Jersey. Sir, you are recognized for 

5 minutes. 

STATEMENT OF THOMAS DUCH 

Mr. DUCH. Mr. Chairman, committee members, I appear before 

you today on behalf of the people of the City of Garfield, a community of approximately 31,000 people located in south Bergen County in the State of New Jersey. We are multi-ethnic, multi-cultural 

and a multi-religious community. We are a microcosm of America 

itself. 

Our city is an old industrial city filled with tired factory buildings, many of which are beyond their useful life. Many of these 

former industrial sites have contamination problems which are beyond the grasp of local government to handle. 

Back in 1983 at the EC electroplating factory in our community, 

there was a spill of hexavalent chromium. 3,640 gallons of chromium were released into the Earth. Of that, 1,056 gallons were recovered, with the rest remaining in our soil. 

Over the last 25 years, the NJ DEP handled this site. They made 

a determination in the late 1980s that no further action was required and that there were no health concerns. 

In early 1993, Fire Company Number 3, located in the downstream plume of the underground water table had to be closed due 

to the detection of hexavalent chromium in the basement of that 

firehouse facility. 

As we have learned, once hexavalent chromium enters a building 

and crystallizes, it can be dispersed into the air. Scientific evidence 

tells us that if you breathe that dust into your lungs, it will likely 

cause cancer. 

Approximately 5 years ago, in the fall of 2008, I was contacted 

by the U.S. EPA. I was told that they were taking on the responsibility for the chromium spill in our city. My initial meeting was 

productive and I was impressed with the competence and the genuine interest of the EPA in helping our people. We provided them 

with lists of residents, property owners and tenants in an effort to 

get notice out to the community that the EPA would investigate 

and examine homes and properties in the affected area. 

The EC electroplating facility is located in a densely populated 

section of Garfield. Within the spill area, there are approximately 

600 separate parcels of property. These include one and two-family 

homes, multi-family dwellings, an elementary school, a daycare facility, houses of worship and industrial and commercial properties. 

We have approximately 6,300 separate parcels of property in our 

city, therefore, almost 10 percent of our community has been affected. 

Notification has been made to residents in multiple languages: 

English, Spanish, Polish and Macedonian. We have conducted 

many public hearings with the EPA to provide information to our 

people and to answer their questions. 

The EPA’s team on the ground in Garfield has been exceptional. 

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and competently. They have given reassurance to a scared popuVerDate Nov 24 2008 12:31 Nov 15, 2013 Jkt 037690 PO 00000 Frm 00111 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-43 CHRIS
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lace, but despite that reassurance, property values in the area have 

declined significantly. 

With the assistance of the EPA, 400 homes and properties have 

been examined. Contaminated properties detected to date have 

been cleaned up and monitoring wells have been installed throughout the affected area in order to fingerprint exactly where the contamination lies below the surface. 

To get into the ground below the EC electroplating facility, demolition of the building on the surface was required. Due to safety 

concerns expressed by residents that chromium-tainted dust could 

be released from the property during demolition, an additional public hearing was held with the staff and administration of a kindergarten through fifth grade elementary school one half block from 

the site. That hearing included residents throughout the affected 

area. 

The factory itself has now been demolished. The site is fenced 

and ready for the next phase of study to plan for the removal of 

the chromium that sits below ground in the water table of this 

neighborhood. 

This phase, the analysis and cleanup phase, will absolutely require continued funding of the U.S. EPA initiative in the City of 

Garfield. We are a Superfund site. We are a Superfund cleanup priority. We are a community living in fear that this chromium in our 

water table may be impacting the health, safety and welfare of our 

residents. Our cleanup need is immediate. 

I urge your committee to continue with the necessary funding to 

address Superfund sites, not only in the City of Garfield, but 

throughout the Nation. It is incumbent upon all of us as public officials to prioritize and to fund those budgetary requests that provide 

the greatest good for the people that we answer to. I respectfully 

request your support for all of the cleanup funding that is necessary in the City of Garfield and all other sites which present immediate health hazards to the people who live in or near them. 

Thank you, Mr. Chairman, members of the committee, for giving 

me the opportunity to appear before this prestigious committee. 

Mr. SHIMKUS. Thank you. 

[The prepared statement of Mr. Duch follows:] 

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[The prepared statement of Mr. Stanislaus follows:] 

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Mr. SHIMKUS. Now the chair recognizes himself for 5 minutes for 

5 minutes of questioning. 

Let me start with Ms. Dillen. When Earthjustice has engaged in 

litigation with the EPA, does Earthjustice receive compensation 

from the Federal Government for attorney fees and court costs? 

Ms. DILLEN. Only if we prevail in a lawsuit. The Federal Government is like any other party, and if it is—— 

Mr. SHIMKUS. So the answer is yes. And can you give us how 

much you received in 2012? 

Ms. DILLEN. No. I don’t have that figure. 

Mr. SHIMKUS. Well, can you submit that to the committee for the 

record? 

Ms. DILLEN. Yes, I certainly can. 

Mr. SHIMKUS. Great. Thank you. 

Let me follow up with you. Do you have a position on any other 

legislation we are discussing today? 

Ms. DILLEN. Not that I am prepared to discuss. 

Mr. SHIMKUS. So a hearing on three pieces of legislation, so you 

decided just to testify on one? 

Ms. DILLEN. Chairman, I was asked to address the 2002(b) issue, 

which I have particular knowledge about. I am not an expert on 

CERCLA, and wouldn’t care to—— 

Mr. SHIMKUS. Let me ask a question as a citizen. If there is a 

state and has a Federal facility that has major contamination, do 

you think that the Federal Government should comply with the 

same laws that states, local communities and businesses have to 

abide by? 

Ms. DILLEN. Chairman, I am here to testify about 2002(b), and 

I would prefer not to wade in to CERCLA, which is an area that 

requires, I think—— 

Mr. SHIMKUS. Thank you. 

Ms. DILLEN [continuing]. Tremendous sensitivity—— 

Mr. SHIMKUS. Thank you. 

Ms. DILLEN [continuing]. And expertise. 

Mr. SHIMKUS. Mr. Duch, let me ask you that same question on 

just Federal facilities. If a Federal facility is in your community 

and it has the same type of problem as you just outlined by a private sector business, should that Federal facility have to comply 

with the Federal laws in your community? 

Mr. DUCH. Mr. Chairman, in my opinion, a Federal facility 

should apply just like every other facility. 

Mr. SHIMKUS. All right. Thank you very much. 

Let me now go to Ms. Hanson. ECOS has adopted a resolution 

that it advocates clarification of the CERCLA waiver of sovereign 

immunity to ensure that Federal facilities are subject to appropriate state regulations. Does the Federal Facilities Accountability 

Act accomplish the purposes of the ECOS resolution? 

Ms. HANSON. According to our understanding of the bills, we do 

believe that it addresses concerns expressed by the states in that 

resolution. 

Mr. SHIMKUS. Does ECOS support the Federal and state Environment Partnership for Environmental Protection Act? 

Ms. HANSON. I will have to double-check on that. 

Mr. SHIMKUS. Well, that is—— 

120 

Ms. HANSON. I am—yes. 

Mr. SHIMKUS. The name, we have the REDO Act, the state Partnership Act and we have the Federal Accountability Act, three 

pieces of legislation in this oversight hearing today. 

Ms. HANSON. And which one were you asking about? I am sorry. 

Mr. SHIMKUS. In essence, the state Partnership Act, giving states 

more of a role in the whole process as—— 

Ms. HANSON. I am sorry. I got my pages out of order. 

We addressed certain part—we agree with certain parts of the 

bill: the consultation with the states and the credit for state contributions. 

Mr. SHIMKUS. Mr. Steers, can you describe the role states currently have in administering the CERCLA cleanup program? 

Mr. STEERS. Yes. Many of the states work with the EPA on oversight and also assist the U.S. Government through cooperative 

agreements on doing site assessments and preliminary investigations at the very front end of the CERCLA process where we identify sites. 

So the states have a role in working with U.S. EPA in identifying 

sites that may be at risk. We also have a role in using state Superfund contracts for the process of state input and oversight, at least 

to be able to offer that; not always used, but we do get that opportunity. 

Mr. SHIMKUS. Do you have any decision-making authority under 

CERCLA? 

Mr. STEERS. I will say it is very limited. And typically what—and 

what we would hope by these bills is that we have more authority, 

especially when it comes to determining whether to even put a site 

on the NPL, or with the remedy; especially with the selection of a 

remedy. 

Mr. SHIMKUS. Yes. And I think you followed—that was my follow-up question. Why would that—why is it important that the 

states at least have some role? So it is really the NPL issue, too. 

You may want to more rapidly identify a location on the NPL. And 

correct me if I am wrong, by empowering you all, you may be able 

to leverage that and get a site on the NPL sooner? 

Mr. STEERS. We may be able to do that. We have—states understand their sites the most and have the greatest boots on the 

ground with being able to identify what our priority sites are. So 

having the ability to suggest sites for the NPL is also something 

that I think we all as states would support where it is appropriate. 

Mr. SHIMKUS. Great. My time has expired. The chair now yields 

to Mr. Tonko for 5 minutes. 

Mr. TONKO. Thank you, Mr. Chair. And, again, good morning to 

our witnesses. I would like to examine one legislative provision in 

the bills before us that may be particularly controversial. 

Section 113 of CERCLA includes a statutory bar on pre-enforcement review of cleanup remedies. My understanding is that when 

this committee crafted the law decades ago, this was considered a 

very important key provision. 

Mr. Miller, your testimony refers to this bar on pre-enforcement 

judicial review as, and I quote, one of the key provisions of the 

statute. Can you explain why that provision is so important? 

121 

Mr. MILLER. Certainly. The concern was that without the bar on 

the pre-enforcement review, anyone would be allowed to challenge 

an EPA decision on a remedy and thereby delay the implementation of the remedy potentially for years while the litigation runs its 

course. And so obviously there was a concern that responsible parties at these sites might seek to delay their obligation to clean up 

the site, but it could go the other way. Everybody is precluded pretty much from challenging remedies prior to their implementation, 

environmental groups, industry, states. 

Mr. TONKO. And so is the result, then, of that perhaps added or 

extended hazardous and human health concerns? 

Mr. MILLER. Well, because the statute bars that type of litigation, it allows the remedies to be implemented in a timely fashion, 

and then people can sue after the remedy has been implemented 

to challenge whether it was a correct decision or not, but in the 

meantime you have addressed the human health concerns by implementing the remedy. 

Mr. TONKO. So then what problems would arise if Congress did 

indeed lift this bar and allowed judicial review of cleanup remedies? 

Mr. MILLER. As I read the provision, any time a state has expressed an objection to a remedy, it would allow any entity to sue 

to block implementation of the remedy, and so at sites where that 

occurred cleanup could be delayed for years. 

Mr. TONKO. And an increased litigation that would result? 

Mr. MILLER. It would—I mean, yes. 

Mr. TONKO. So, Mr. Miller, it appears that the way the proposal 

is drafted, even a responsible party would be able to go to court to 

challenge a remedy before its implementation. 

Mr. MILLER. That is how I read the provision. 

Mr. TONKO. And the responsible party could have a financial incentive to go to court, delay a cleanup and argue for a less protective cleanup remedy? Is that correct? 

Mr. MILLER. Yes, that is correct. 

Mr. TONKO. I guess someone could argue that despite those 

drawbacks, this provision might still be worth it if it resulted in 

better cleanups, but this provision would result in judges deciding 

the best way to clean up Superfund sites. 

Does anyone on the panel think that judges would make the best 

technical cleanup decisions? Anyone? 

Mr. MILLER. I guess it depends on the standards they are applying. Typically judges give some deference to agency decisions within the area of their expertise, but the main concern here is with 

the timing of the litigation and the timing of when the cleanups 

would happen. 

Mr. TONKO. Anyone else that might have an opinion on having 

it fall to a judicial interpretation? Anyone? 

If not, Mr. Duch, you are a city manager trying to get a site 

cleaned up in your community. What would be your advice to the 

committee when you hear that we are considering a legislative proposal that could increase litigation and in fact delay cleanups? 

Mr. DUCH. My primary concern as a city manager is really the 

health, safety and welfare of the people who live in that area. Any 

litigation that would slow up the process is certainly not desired. 

122 

Anything that allows the filing of more litigation could present a 

problem in my community. Right now there is no litigation. We are 

proceeding. Litigation would slow us down. 

Mr. TONKO. And, Mr. Chair, the basic policy behind Superfund 

is that polluters should pay for their pollution. May I respectfully 

share that I think we should be very careful about potentially creating new avenues for litigation that can allow polluters to delay 

cleanups and argue for weaker protections. They have a financial 

incentive to do so, but that does not align with the public interest. 

With that, I yield back. 

Mr. SHIMKUS. The gentleman yields back. I think we have time 

for one more round of—not round, but one more question before 

there is votes. There are 11 minutes left on the floor. So the chair 

now will turn to Mr. Murphy for 5 minutes. 

Mr. MURPHY. Thank you, Mr. Chairman. I was assuming I 

wasn’t going to get to, so I will pass, go to somebody else. I am still 

preparing my questions. 

Mr. SHIMKUS. Well, for the majority time, does anyone want to 

seek time for the 5 minutes? Mr. Latta. 

Mr. LATTA. Well, thank you, Mr. Chairman. And thanks very 

much for our witnesses for being here today. I really appreciate it. 

And if I could start with Ms. Hanson, if I may. Kind of following 

along the chairman’s lines, the question is, has ECOS, has it adopted a resolution regarding the fact that states are co-regulators with 

the Federal Government and that there should be a meaningful 

and substantial involvement of the state environmental agencies as 

partners? 

Ms. HANSON. We have. 

Mr. LATTA. OK. And does the Federal and state Environmental 

Partnership for Environmental Protection Act accomplish the purpose of the ECOS resolution? 

Ms. HANSON. In that it addresses consultation with the states, it 

does. 

Mr. LATTA. OK. And let me just ask to follow up with that, is 

that consultation very—you know, I came from state government. 

I was in the legislature for 11 years. And I was also on the receiving end. I was a county commissioner for 6 years. So I was getting 

it from the Federal and the state. 

So does the ECOS support the Federal and state Environmental 

Partnership for the Environmental Protection Act? Does that—— 

Ms. HANSON. I didn’t follow your question. I am sorry. 

Mr. LATTA. OK. Does the ECOS support the Federal and state 

Environmental Partnership for the Environmental Protection Act? 

Ms. HANSON. We support parts of the bill: the consultation, the 

state credit for their contributions, and placing the sites on the National Priorities List. 

Mr. LATTA. OK. And following along those lines, in your testimony it notes that the EPA is not obligated to listen to state input 

about the remedy selection for sites on the National Priority List. 

And to what extent does the EPA include the states in selecting a 

response action? 

Ms. HANSON. I believe that would vary state to state. If you 

wanted specific numbers or responses, I would have to get back to 

you. 

123 

Mr. LATTA. OK. Well, when you say it varies from state to state, 

is there a wide variance? Or how would you rank that? 

Ms. HANSON. Again, I would have to check on exactly what that 

would be. 

Mr. LATTA. OK. And if I could turn to Mr. Steers, if I could ask 

you. Do Federal agencies, including the EPA, implementing the 

CERCLA routinely comply with all applicable state requirements, 

and if not, why not? 

Mr. STEERS. Well, we often identify and actually we always do 

identify the ARARs in the state requirements. Typically, though, 

the Federal agencies, especially on former use defense sites, for example, the agencies tend to use sovereign immunity as a get-outof-jail card, if you will, trying to circumvent state requirements 

that may be more stringent, and especially considering them and 

other media such as the NPDS water programs and the Clean Air 

Act. So states have authorized programs and have regulatory requirements that we end up having delayed Federal actions because 

of debates on sovereign immunity. 

Mr. LATTA. OK. But in those, who typically determines what 

state requirements are applicable? 

Mr. STEERS. Can you repeat your question again? 

Mr. LATTA. Yes. Who typically determines what state requirements are applicable? 

Mr. STEERS. You know, the states are only in a position to offer 

these up. And at the end of the day EPA and the Federal agencies 

determine which ARARs that are going to be used. 

Mr. LATTA. Thank you, Mr. Chairman. 

Mr. SHIMKUS. Will the gentleman yield? 

Mr. LATTA. I yield to the chairman. 

Mr. SHIMKUS. Thank you. I had a follow-up question for Mr. 

Duch. I come out of local government, too. So I appreciate folks in 

municipalities, counties, and townships. If you were required under 

state statute—I assume cities in New Jersey are empowered by the 

state constitution, which allow you to incorporate as a city—I 

mean, is that correct? 

Mr. DUCH. Our city is incorporated. I don’t understand, Mr. 

Chairman. 

Mr. SHIMKUS. Well, the state gives that you authority to incorporate to become a city by the state constitution. 

Mr. DUCH. Correct. 

Mr. SHIMKUS. So let say the state passed a law and said, City, 

you have to review all of ordinances every 3 years. Would that be 

helpful? 

Mr. DUCH. It probably would be helpful. New Jersey is known for 

having many old, old laws—— 

Mr. SHIMKUS. So I can, then, call the State of New Jersey and 

say, I have got a city manager who says it is going to be helpful 

to him to review all his local ordinances every 3 years. And, if not, 

then people who are adverse to that would be able to take the city 

to court because you haven’t reviewed those laws in 3 years. Is that 

what you are asking for? 

Mr. DUCH. I am not asking for that, Mr. Chairman. 

Mr. SHIMKUS. But the point of the question is one of the pieces 

of legislation says that the Federal Government, the EPA has to reVerDate Nov 24 2008 12:31 Nov 15, 2013 Jkt 037690 PO 00000 Frm 00129 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-43 CHRIS
124 

view every regulation within 3 years. And if they don’t, whether it 

is a good regulation or not, they have to review it. And, if not, then 

outside parties can sue them. Would you like the same type of 

venue for your local community? 

Mr. DUCH. It would slow down our ability to run the government 

if there was a review process. 

Mr. SHIMKUS. Yes, sir. And very costly. 

Mr. DUCH. Absolutely. 

Mr. SHIMKUS. And possibly litigious. 

Mr. DUCH. If I had to make a choice between doing that and 

spending the money on the cleanup, I would spend the money on 

the cleanup. 

Mr. SHIMKUS. Amen, brother. Thank you. I am going to recess 

the committee till after votes. We will reconvene about 15 minutes 

after the last vote. The hearing is recessed. 

[recess.] 

Mr. LATTA [presiding]. I would like to call the subcommittee back 

to order. I believe I was the last to ask questions before the recess 

for votes. And the next questioner on the Democratic side is the 

gentleman from Michigan, the chairman emeritus, Mr. Dingell is 

recognized. 

Mr. DINGELL. Mr. Chairman, I thank you for your courtesy. 

These questions go to Mr. Miller of Colorado Department of Law. 

Mr. Miller, relating to the amendments in Section 108 of 

CERCLA, how many states have promulgated the financial responsibility requirements? 

Mr. MILLER. I don’t know the answer to that question. 

Mr. DINGELL. We will submit it for the record. 

Mr. MILLER. But certainly, any state that has a RCRA program 

or state equivalent to RCRA, would have financial assurance 

for—— 

Mr. DINGELL. But the answer is very few, if any. Is that right? 

Mr. MILLER. I am not sure. 

Mr. DINGELL. OK. Let’s go to the next one. I don’t want to be unfair to you. 

Relating to the amendment to Section 2002(b) of CERCLA, which 

eliminates the requirements of current law that require the Administrator to review regulations every 3 years, this requirement has 

been a part of the Federal law for over 30 years. Do you believe 

that the efforts to change this longstanding provision have anything to do with litigation relating to coal ash regulations? Yes or 

no. 

Mr. MILLER. It is my understanding that it does. 

Mr. DINGELL. Thank you. Now, sir, does anything prevent a state 

from obtaining funding for its activities on Superfunds and things 

of that sort from fees, taxes, or other revenues to clean up toxic 

waste sites in their state? 

Mr. MILLER. They would just have to do it in compliance with 

whatever their state laws are. 

Mr. DINGELL. So there is no obstacle in any Federal law to prevent them from doing so? 

Mr. MILLER. Not that I am aware of. 

125 

Mr. DINGELL. OK. Now, if states then choose to exercise this, 

they have total control over the remedy selected or the removal action taken. Is that not so? 

Mr. MILLER. It depends on whether the Federal Government is 

also acting. If the EPA—— 

Mr. DINGELL. No, but if the state initiates its own program, 

using its own funding, it can then proceed to function under its 

own law; right? 

Mr. MILLER. That is correct. 

Mr. DINGELL. Now let us draw our attention to Section 113(h). 

This provides new opportunity for lawsuits where a state simply 

writes a letter objecting to a remedy selected by the President. 

After such letter is posted by the state, it would allow this new— 

under this provision, it would allow the responsible party who polluted the site to litigate the challenge and to challenge the remedy. 

Is that not so? 

Mr. MILLER. That is correct. 

Mr. DINGELL. I believe that Ms. Dillen—I have trouble seeing— 

I believe you were of the same view. Is that correct? 

Ms. DILLEN. Yes. 

Mr. DINGELL. Thank you. Now, the next question is, would it 

allow an environmental group also to challenge the remedy if they 

could get a state to write such a letter? Yes or no. 

Mr. MILLER. Yes. 

Mr. DINGELL. OK. Who would, in fact, be barred from such an 

effort; in other words, getting the Governor to write a letter? Anybody could do it; right? 

Mr. MILLER. Anybody could try to do that, yes. 

Mr. DINGELL. Good. Now, in a situation where the state wants 

the most gold-plated remedy which might require the excavation 

and disposal of hundreds of tons of contaminated soil so its future 

operation and maintenance costs for which the state is responsible 

are less, could this new lawsuit provision be used to leverage the 

Federal cleanup decision up or down? 

Mr. MILLER. It would provide the states more leverage in their 

discussions with EPA as to what their—— 

Mr. DINGELL. I am not trying to trap you, but the answer is yes, 

right? 

Mr. MILLER. Clearly, it is trying to give the states more leverage 

in their negotiations with EPA. 

Mr. DINGELL. Now, this also affords opportunity for the process 

to be delayed, does it not? 

Mr. MILLER. The way that provision is drafted, because it affects 

the 113(h) bar on judicial review, it does—— 

Mr. DINGELL. So again the answer is yes? 

Mr. MILLER. Yes. 

Mr. DINGELL. Now, what happens to the citizens surrounding the 

community? Here we have a lot of folks living around the site and 

they are daily being exposed to these hazardous substances. And 

they want the site redeveloped to create jobs and to make their 

lives and that of their families and children more safe. So now we 

have a process where the decision is going to be litigated, and this 

can take years in the Federal court under this new lawsuit provision. Am I correct? 

126 

Mr. MILLER. Yes, it could lead to lengthy delays in cleaning up 

sites. 

Mr. DINGELL. And one of the problems I believe with Superfund 

is that these things are litigated till hell freezes over; isn’t that 

right? 

Mr. MILLER. CERCLA litigation can go on for a long time. 

Mr. DINGELL. And it is having a prodigious delaying effect on the 

cleanup of all of these poison sites and it is creating huge difficulty 

in terms of seeing to it that we make the progress that people desperately want in disposing of these sites, and it is costing more 

money. Am I right or wrong? 

Mr. MILLER. Well, with the pre-enforcement judicial—the bar on 

pre-enforcement judicial review in place, that limits litigation that 

would delay cleanups. Most of the—— 

Mr. DINGELL. So the answer is it permits a splendid opportunity 

to obfuscate the process, delay the cleanup, and cost a lot more 

money in litigation, which is a prodigiously expensive undertaking. 

Right? 

Mr. MILLER. Right. It would open the door to a lot more litigation. 

Mr. DINGELL. Now, Ms.Hanson—— 

Mr. SHIMKUS [presiding]. If the gentleman would suspend. The 

clock got started late, and you are already 30 seconds over. 

Mr. DINGELL. Am I incorrect that I have got 26 seconds? 

Mr. SHIMKUS. And the clock got started late, so it is really a 

minute and 26. But if the gentleman wants to ask unanimous consent for an additional 30 seconds for—— 

Mr. DINGELL. I will accede to the wishes of the chair. I thank 

you. 

Mr. SHIMKUS. Thank you. The chair now recognizes the gentleman from West Virginia, Mr. McKinley, for 5 minutes. 

Mr. MCKINLEY. Thank you, Mr. Chairman. Just a matter of 

housekeeping, Mr. Chairman, and for the panel, I think we have 

worked under the idea in this committee, in my time, we were to 

have all testimony submitted within 48 hours or prior to 48 hours 

before testimony. And, Ms. Dillen, were you aware of that requirement from Earthjustice, that there is a 48-hour restriction? 

Ms. DILLEN. Mr. McKinley, my understanding is there was only 

an agreement reached late yesterday on what witnesses would be 

here, and I only received my invitation to testify yesterday afternoon. 

Mr. MCKINLEY. So there is some reason. Because we only got 

your last night testimony around 7:30. 

Ms. DILLEN. Yes, there is a reason. 

Mr. MCKINLEY. So I didn’t have a lot of chance. But I think it 

was interesting because quite frankly, I thought, after reading your 

testimony, I thought you were going to testify at a different hearing. Because it really has little to do with this hearing when 10 of 

the 15 pages had to do with fly ash when—and then when they 

quizzed you, they were—someone earlier, you didn’t have expertise 

in all 3, but you did have about the fly ash. So I hope you come 

back when we talk with fly ash so we can have a meaningful, adult 

conversation with that. 

Ms. DILLEN. I would be delighted to. 

127 

Mr. MCKINLEY. But, in the meantime, I am trying to reconcile 

your testimony. On page 4, you say that, ‘‘In any deadline enforcement case, the agency has ample time—’’ on and on—‘‘and there is 

no reason to the courts will impose unworkable deadlines.’’ But yet 

then in your own brief you said you think they should be forced to 

do it within 6 months. Can you explain that a little bit better why 

there is this contradiction in your testimony and in your legal 

brief? 

Ms. DILLEN. Certainly. There isn’t a contradiction. In our briefing, we take the position that EPA has had decades to come forward with revisions of the regulations that should address coal ash 

and has failed to do that. It has proposed a rule in 2009. We think 

that the agency could expeditiously wrap up this rulemaking process that has created uncertainty for everyone. Whether—— 

Mr. MCKINLEY. There seems to be a bit of a moving target. I am 

curious, I think some testimony—maybe, Mr. Duch, you mentioned 

it, about some of the pollutants. But the legislation that we passed 

four times out of here last year would have resolved a lot of the 

issues that you are referring to about groundwater contamination. 

Because under the legislation we passed, it called for new liners 

underneath all new impoundments that would take care of this, 

and called for strict requirements over dam safety and water monitoring. All the things—but yet your group opposed that. So I am 

just curious about that, because you seem to be wanting it both 

ways. When the legislation was addressing it. But I think the real 

sticking point, if I am correct, is over primacy. You want the EPA 

to control the landfills versus the House’s position, and with quite 

a few from the other side of the aisle, we are looking for resolution 

by allowing the states. And the states themselves have said they 

are prepared to do that. So you worked against a resolution to the 

very problem you are addressing. 

Ms. DILLEN. We want environmental protection in whatever form 

it comes in. The House bill would not provide it. 

Mr. MCKINLEY. We gave it with putting liners underneath it and 

dam impoundments so we wouldn’t have another Kingston. Because it wasn’t what they were containing was the problem, it was 

a failure of a dam that collapsed that caused that. 

Ms. DILLEN. Respectfully, we disagree. But that is a bill that is 

not before the committee today. 

Mr. MCKINLEY. Thank you. So I was just curious because you 

came and that is all your testimony has been, about fly ash. So I 

am just curious to see what you know about it other than just you 

want it your way and not in a way the committee—because we had 

an earlier discussion with Administrator Stanislaus. And he 

showed a very positive attitude about getting this thing resolved 

this year. And I am very encouraged with the possibility. We may 

very well through bipartisan get some kind of resolution. But you 

seem to be stuck outside the table. I would suggest that perhaps 

instead of looking for perfect, if you are willing to compromise with 

us, we will all come to some resolution and resolve this matter and 

remove the stigmas associated with the recyclable materials. 

My time—apparently, I have got a couple seconds. You want to 

respond? 

128 

Ms. DILLEN. We would certainly be interested in any action by 

Congress that would resolve the longstanding water pollution problems and fly ash air pollution problems and dam safety issues. So 

far, that has not materialized. 

Mr. MCKINLEY. You understand Mr. Stanislaus already said he 

is trying to work with us and try to get that resolved. 

Ms. DILLEN. I am sorry. I—— 

Mr. MCKINLEY. You are not aware that the Administrator said 

he is willing to work with us on a bipartisan—— 

Ms. DILLEN. If the Administrator is willing to work with Congress and Congress is willing to come to a solution that actually 

works to address coal ash, we would be the first people to endorse 

such a solution. So far, that solution has not materialized. 

Mr. MCKINLEY. Thank you very much. Yield back. 

Mr. SHIMKUS. Gentleman’s time expired. Chair now recognizes 

the gentleman from California, Mr. McNerney, for 5 minutes. 

Mr. MCNERNEY. Thank you, Mr. Chairman. 

Ms. Hanson, could you tell me how many times a site has been 

added to the National Priority List without the concurrence of the 

state of location? 

Ms. HANSON. I don’t have a number right off. We would have to 

look into that to get an actual number of times. 

Mr. MCNERNEY. My understanding is there haven’t been any. 

And I was wondering if that was because there was a tacit agreement in place or was it because of financial constraints at the EPA 

that states are not adding sites or not wanting to add sites to the 

National Priority List? 

Ms. HANSON. I don’t know specifically why that would be. 

Mr. MCNERNEY. Well, my district has two Superfund sites. And 

I was going to ask your opinion on what it would take to get action 

on those sites. Would it take additional EPA budget money? Would 

it take legislation here in Congress? 

Ms. HANSON. Not knowing anything about those sites and where 

they have fallen and looking at risk and things like that, it would 

be hard to make any statement on how you get those. 

Mr. SHIMKUS. Would the gentleman yield? Are those on the National Priority List right now, do you know? I am just curious. 

Mr. MCNERNEY. Yes, they are. In fact, I can tell you what they 

are, if you want. 

Mr. SHIMKUS. No. I just—because part of this debate is if states 

have bad sites, they are trying to use this venue to get on the National Priorities List. It is not the flip side. 

Mr. MCNERNEY. Reclaiming my time. 

Ms. Dillen, some have claimed that the deadline set out in Section 2002(b) of the Solid Waste Disposal Act has proven impracticable and it results in an avalanche of lawsuits. As you mentioned 

in your testimony there has only been 3 lawsuits under that provision in the last 29 years since the law has been on the books. Do 

you believe that the EPA has been under excessive burdens because of this review requirement? 

Ms. DILLEN. No. There is no evidence to suggest that it has been. 

These 3 lawsuits all relate to a single issue, and that is regulation 

of coal ash. And that is something that has been an issue that EPA 

has recognized needs to be addressed for the last two decades. And 

129 

even in that court case, EPA has said, we recognize we need to revise these regulations. And so now it is just a question of getting 

it done. And I would submit that without a deadline we won’t see 

regulations to address this problem in the foreseeable future. 

Mr. MCNERNEY. Thank you. Mr. Miller, you mentioned the issue 

of Federal financial responsibility requirements, potentially preempting state requirements. Do you believe the EPA has the discretion to address that issue under current authority? 

Mr. MILLER. My understanding of the existing law is that EPA 

does have discretion to write rules that would meet the intent of 

Section 108 to provide financial assurance for releases of hazardous 

substances without preempting state laws that address related but 

separate issues, such as RCRA closure of hazardous waste impoundments, and the like, or mining bonds under state mining 

laws to require reclamation. But they also have the discretion to 

preempt. 

Mr. MCNERNEY. Thank you. 

Ms. Hanson, again, you have expressed support for protecting 

state financial responsibility requirements for hard rock mining. 

How many states have adopted financial responsibility requirements for hard rock mining? 

Ms. HANSON. I do not have that number with me today. 

Mr. MCNERNEY. You will need to get that to us, then. 

Ms. HANSON. OK. 

Mr. MCNERNEY. Has ECOS conducted a comparative analysis of 

those state requirements to know how the requirements are similar 

and how they are different? 

Ms. HANSON. We have not. 

Mr. MCNERNEY. All right. I understand that we may be marking 

these bills up in June. Will you commit to provide the committee 

that information for the record before the markup occurs? 

Ms. HANSON. We will do our best to get that information as rapidly as we can. 

Mr. MCNERNEY. Thank you. I yield back. 

Mr. SHIMKUS. Gentleman yields back the time. Chair now recognizes the gentleman from Florida, Mr. Bilirakis, for 5 minutes. 

Mr. BILIRAKIS. Thank you, Mr. Chairman. I appreciate it very 

much. Thank you for holding this hearing. 

There are 16 Superfund sites in or near my Florida congressional 

district, some of which have had the status for several years. The 

length of time it takes for EPA and the Florida Department of Environmental Protection to coordinate is one of the reasons the process takes so long. 

This question is for Ms. Hanson and Mr. Steers. You have mentioned that EPA’s coordination practices are not consistent across 

regions or state to state. What legislative recommendations do you 

suggest to ensure every state receives equitable treatment? Whoever would like to go first. 

Mr. STEERS. Yes. I think in order to solve the—especially with 

remedy selection and being able to get some more consistency 

across the country by EPA regions, I think having EPA have more 

skin in the game, if you will, may help that concurrence be taken 

a little more seriously. It is not to say that they are never concurring with or they are never taking the information and the recVerDate Nov 24 2008 12:31 Nov 15, 2013 Jkt 037690 PO 00000 Frm 00135 Fmt 6633 Sfmt 6633 F:\MY DOCS\HEARINGS 113\113-43 CHRIS
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ommendations the states have, but it is not done consistently. And 

the results when it is not done on either poor design or performance of some of these long-term systems are saddling the states 

with a lot of cost, my pipe example being one. But there is many 

out there. And I believe if EPA had more skin in the game by— 

you know, if they want to minimize or marginalize a state’s recommendations, then they should be on the hook for some of the 

long-term O&M that goes on with these sites. It is a way to ensure 

that the state’s voices are heard for the long course of O&M that 

can result from not taking our comments into account during the 

remedy selection. 

Mr. BILIRAKIS. Thank you. 

Ms. Hanson. 

Ms. HANSON. Yes. ECOS always advocates for a stronger state 

role in working on environmental issues with the Federal Government. And under the current setup, the Federal Government is 

only required to—is not required, actually, it is just a policy that 

EPA consult with the states. And we have said in our testimony 

that we would like it to be—we approve of it being required. 

Mr. BILIRAKIS. Thank you. Ms. Hanson, you note in your testimony that providing a mechanism for states to list sites that meet 

the listing criteria would make certain parties more willing to negotiate with the states and resolve cleanup issues without having 

to use Superfund money. Can you please explain that or elaborate 

if you will? 

Ms. HANSON. I think if sites knew that they could have a state 

come to them in addition to just the Federal Government, there is 

not just one mechanism but more than one mechanism or more 

than one group, that they would be more willing to talk to states. 

If they think it is only the Federal Government that is going to 

come in on a site, on a complex Superfund-type site, they are not 

going to talk to the states, they are going to wait for the Federal 

Government to come in. 

Mr. BILIRAKIS. Again for Ms. Hanson. EPA has indicated that the 

agency has a policy of not listing its sites on the National Priorities 

List over the objection of the states. Is that policy applied consistently across the regions? And shouldn’t it be a requirement that 

EPA not list a site over the objection of the state? 

Ms. HANSON. We find that there are regularly variations state to 

state, region to region, on all sorts of work with the EPA. So having something a requirement ensures that it does occur consistently. 

Mr. BILIRAKIS. Anyone else wish to comment on that? 

Mr. STEERS. And I would agree. I think a lot of our states, we 

feel like we are being pressured through the governance concurrence process into putting sites on the NPL when, quite frankly, 

there are other solutions out there that could facilitate a cleanup 

much faster than just being in on the CERCLA process. I understand there are some EPA regions where they are actually going 

through looking at newspaper articles for sites that potentially 

could be on the NPL as a way to try to keep the ball rolling with 

getting sites enrolled in the program. That is why I feel, and our 

association feels, that having a process where you go through 

prioritizing the states sites and what the state knows about the 

131 

economic and environmental conditions in a community— in a previous testimony I gave in front of this committee, I mentioned that 

we have some success stories of watershed approaches that are 

used sometimes to clean up several sites without having to go 

through the long process on the NPL. And we had one in my 

former State of Ohio that I worked for, which was a very big success story, where a lot of contaminated property along the Ottawa 

River was actually restored and cleaned up without the Superfund 

stigma attached to it because all the responsible parties came together, worked together, and facilitated a cleanup on their own 

with the state using a voluntary cleanup program as a way to restore that watershed. 

Mr. BILIRAKIS. Thank you, Mr. Chairman. I yield back. 

Mr. SHIMKUS. The gentleman’s time has expired. The chair now 

recognizes the gentleman from Texas, Mr. Green, for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman, for holding the hearing. 

I am glad to hear that this will be the first of at least two hearings 

looking at the successes and possible shortcomings of RCRA and 

Superfund sites. Our district in East Houston, on Harris County, 

Texas, has a number of Superfund sites close in proximity, including the San Jacinto Waste Pits and the U.S. Oil Recovery. With my 

colleague, Congress Ted Poe’s support, the EPA has been conducting studies and we are in the early stages of cleaning up the 

San Jacinto River site. U.S. Oil Recovery site was listed as a proposed addition to the NPL in 2011. From what I have witnessed 

at the San Jacinto Waste Pits, I believe the EPA is making great 

strides in the Superfund program. However, as a form state legislator, I am sensitive to the cost Federal decisions have placed on 

state and local governments and hope this hearing will highlight 

the importance of the EPA to work with the states as closely as 

possible and weigh the long-term cost of remediated Superfund 

sites on state governments. 

Mr. Miller, the national contingency plan sets out how cleanups 

are to be conducted. It includes an expectation that institutional 

controls will be used to supplement engineering controls as appropriate. In your experience, has that expectation been borne out in 

the Superfund cleanups? 

Mr. MILLER. No. That is actually an area where there has been 

quite a bit of difficulty. EPA has paid increasing amounts of attention to institutional controls in recent years and has developed 

some policy guidance on it. But it is an issue that we struggle with, 

particularly at sites that are cleaned up under removal authority. 

And it is an issue that is always difficult at Federal facilities. Federal agencies routinely resist imposition of these institutional controls at their sites. And it is kind of a puzzling position to me because the institutional controls really don’t cost very much at all. 

It is just creating a legally binding document and monitoring it, 

compliance with it. But the Federal agencies have resisted our efforts to impose it at a number of sites. We have recently had some 

luck with the Department of Defense, has come around. And they 

are happy to use a mechanism that we have in Colorado that a lot 

of other states don’t have at DOD facilities. But we are continuing 

to get resistance from the land management agencies. 

132 

Mr. GREEN. The CERCLA as currently written prioritizes treatment that significantly reduces the volume, toxicity, and mobility 

of the contaminants over response actions that do not have that effect. It also requires a cost-effectiveness analysis of response actions, including the costs of operation and maintenance for the entire period during which such activities are required. Mr. Miller, in 

your experience, are these statutory requirements consistently 

met? 

Mr. MILLER. It is a balancing act at every site. 

Mr. GREEN. My experience with two sites in our area, the U.S. 

Oil Recovery site has been frustrating because of the—it is in Pasadena, Texas, in our district—because of the responsible party has 

been very unwilling, in fact has disappeared on us. So that has 

caused other problems. 

Are these areas where we might want to conduct more oversight? 

And do you think that sometimes just asking the right question 

can result in improved performance? 

Mr. MILLER. It is an issue that varies from site to site. I do think 

that, particularly with respect to the long-term maintenance 

costs—in Colorado, we are looking at paying roughly $8 million a 

year to operate water treatment plants at two of our larger mining 

sites. And over time, that O&M cost is going to eventually exceed 

the cost of the original remedy. So this is an issue that the states 

actually sued EPA over when the National Contingency Plan was 

promulgate in 1990 over the cost-sharing provisions. EPA wrote a 

rule that interpreted the statute to require the states to pay 100 

percent of the operation and maintenance. And it was the states’ 

position that the statute actually required a 90/10 cost split—90 

percent Federal, 10 percent state—for both the initial cost of the 

cleanup as well as continued operation and maintenance. So earlier 

today when I referred to changing the cost share provisions, changing the allocation of O&M costs I think could encourage EPA to pay 

more attention to remedies that would minimize, really, the longterm costs of these sites. 

Mr. GREEN. Thank you. I know I am almost out of time. 

Mr. Chairman, I agree with Mr. Miller. There are existing concerns over EPA’s enforcement of Superfund, particularly in light of 

our hearing yesterday in our Energy Committee on the President’s 

budget cuts to the Superfund. And I think it is our subcommittee’s 

responsibility to oversee the EPA actions. Hopefully, the EPA must 

work with state and local governments as closely as possible to 

weigh the long-term costs of the remediated sites. But taking a 

heavy, heavy-handed approach will only make the problem worse 

and open up Superfund to more litigation, which obviously doesn’t 

help us clean up the sites. 

So I appreciate the time this morning. 

Mr. SHIMKUS. The gentleman yields back the time. The chair 

now recognizes chairman emeritus, Mr. Barton, for 5 minutes. 

Mr. BARTON. Mr. Chairman, I don’t have any questions. I will 

just make a general comment. These 3 bills to me look like common-sense efforts to reform and improve CERCLA. And I know 

that former Chairman Dingell seemed to have some pretty serious 

reservations. But hopefully we can work through those and have a 

good, open process in the markup and move the bills. I mean, no 

133 

Federal law was set in stone, and certainly the times have changed 

and some of the imperfections in CERCLA need to be changed. And 

I think this is good faith effort, these 3 bills, to do that. So I hope 

that the committee, the subcommittee can move forward in a bipartisan, open way to move these bills. 

With that, I yield back or yield to you. 

Mr. SHIMKUS. Gentleman yields back. Chair recognizes the 

gentlelady from the State of Illinois, Ms. Schakowsky, for 5 minutes. 

Ms. SCHAKOWSKY. Thank you, Mr. Chairman. Mr. Tonko asked 

if I would sit here. 

Mr. SHIMKUS. That is great. 

Ms. SCHAKOWSKY. Mr. Duch, I want to thank you for being here 

today. Your testimony really provided a picture of how Superfund 

works in the real world to protect people and communities from the 

risks and costs of contamination. It is so important that any 

changes this committee considers to Superfund builds on its success helping communities like yours instead of undermining it. 

That is why I really am concerned that the bills before us today 

actually undermine our ability to help communities like yours. Although the EPA couldn’t be here, they did review the bills. And 

they tell us that the bills will increase litigation, divert funds, and 

generally delay needed cleanups. 

So, Mr. Duch, how long has your town been fighting to clean up 

the contamination at the Superfund site? 

Mr. DUCH. The spill that I spoke about earlier took place in 

1983. It was managed by the New Jersey Department of Environmental Protection for the next 25 years. There was a determination 

made by them in the late ’80s that there was really no further 

problem and no further concern. We were very fortunate in 2008 

that the U.S. EPA was handed the case by the NJDEP. They came 

in. They have begun the cleanup. But my concern is, we have now 

fingerprinted where our problem is, but we need to clean up. And 

the only way we can clean up is if there is continued funding for 

the EPA to do that. Right now, they are doing the analysis phase 

to determine what is the best way to clean up. They are monitoring 

wells, forty-six of them, that have been drilled throughout this 600- 

parcel area. Those monitoring wells are between 8 feet and 400 feet 

deep. So the analysis is being done. But a determination needs to 

be made as to the best way to clean up. There are a number of alternatives that the EPA has discussed with us. They are all expensive. And every other community in the country that has a Superfund site, in particular, a site like this that is under residential 

properties, is threatened. So we do need help. 

Ms. SCHAKOWSKY. So this is your water supply for your town? 

Mr. DUCH. Our water supply is not impacted. The problem is 

that there is a fairly high water table in this particular area. So 

when the water table rises, the hexavalent chromium can seep into 

basements. When it seeps into basements and it dries, it crystallizes. And in that crystallized form, when it becomes airborne 

dust, it becomes dangerous. So the sooner we can get it out of the 

water table or treat it in the water table, the sooner our people will 

be safe. 

134 

Ms. SCHAKOWSKY. So if the money for the cleanup were just not 

available from the EPA, does your town have any other way to get 

the site cleaned up? 

Mr. DUCH. Our community is—we are one of 70 towns in Bergen 

County. We are a—on the socioeconomic scale, our people are working class people. The city does not have that kind of a budget, nor 

do we have the technical expertise that would allow us to address 

this problem properly. 

Ms. SCHAKOWSKY. So would you oppose changes to the Superfund 

that have the potential to limit the funds available for cleanups 

like yours or have the potential to significantly delay any cleanup? 

Mr. DUCH. We certainly would oppose that. The sooner the cleanup can take place the better. The less obstacles that are placed in 

front of the EPA, the sooner we can move forward. 

Ms. SCHAKOWSKY. Thank you very much. 

Mr. DUCH. Thank you. 

Ms. SCHAKOWSKY. I wanted to ask Ms. Dillen, we have a local 

issue—I don’t know, we may disagree on that, Mr. Chairman. But 

you probably know about the Badger Ferry that was recently 

granted a 2-year permit to continue operating on Lake Michigan in 

a settlement with the Environmental Protection Agency. This has 

to do with coal ash being dumped right into the lake. And every 

time it sails between Wisconsin and Michigan, the Badger Ferry 

dumps 4 tons of coal ash into the lake. And each year more than 

500 tons of coal ash is dumped right from the ferry into the lake. 

I wondered what—if you could share your thoughts on the Badger 

Ferry settlement that would allow another season for them to continue dumping. 

Ms. DILLEN. Well, I am not familiar with the details of the settlement. But I certainly know about the issue. And it is one of the 

notorious examples of what can happen when there isn’t proper 

regulation of coal ash. And I think it underscores what my message 

has been to the subcommittee today, which is, please don’t take 

away the one backstop that we have to ensure that EPA is forced 

to address this. And I think the settlement that you point up suggests that the agency is not going to take the action that is needed 

to address even the most notorious problems like the Badger Ferry 

if it doesn’t have a deadline. 

Mr. SHIMKUS. Gentlelady’s time expired. We appreciate the first 

panel for being here and for your testimony. The subcommittee 

stands in recess until Wednesday, May 22, at 10:15 a.m. 

[The bills follow:] 

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[Whereupon, at 11:45 a.m., the subcommittee was adjourned.] 

[Material submitted for inclusion in the record follows:] 

PREPARED STATEMENT OF HON. HENRY A. WAXMAN

Today we begin to examine three legislative proposals involving the Superfund 

program and hazardous and solid waste. These bills cover an expansive number of 

topics—from how sites are cleaned up, to who pays for what, to when citizens can 

go to court over the decisions. 

These are complex issues and changing the law could have serious consequences. 

Legislating in this area is no small undertaking. 

That’s why I want to thank the Chairman for agreeing to hear from additional 

witnesses next Wednesday. We won’t be able to cover every issue, but it will be very 

helpful to hear testimony from the Government Accountability Office and the Congressional Research Service on Superfund and these legislative proposals. 

One bill we will consider today is couched as legislation designed to repeal socalled ‘‘excessive deadlines.’’ Although some may claim that the targeted review requirement will require extensive resources and lead to a flurry of lawsuits, the requirement has been in place for decades with no issue. EPA has never found the 

review burden excessive, and only three suits have ever been brought to enforce the 

deadline—all three relate to the long overdue rulemaking on coal ash. The delays 

in finalizing that rulemaking are bad for the environment and are harming the beneficial reuse industry. 

These cases do not suggest that the deadline is excessive—instead, they suggest 

that it is necessary. 

This is just one example of how the provisions before us today may seem innocuous, or even helpful, on paper. But when we examine EPA’s experience implementing RCRA and Superfund over the last 30–40 years, it becomes clear that they 

are unnecessary at best, and at worst, a threat to the continued success of this essential program. 

Another small provision in the Federal and state Partnership for Environmental 

Protect Act would allow litigation over selected cleanup methods before the cleanup 

occurs—adding significant costs and delays to the process. One expert my staff 

spoke with called that change ‘‘a hole so big it could swallow all of Superfund.’’ I 

don’t believe any of my colleagues want to see that happen. 

These three bills present a lot of ground to cover. I look forward to hearing from 

the witnesses today and when the hearing reconvenes next week. And I hope that 

members of the Subcommittee are given a full opportunity to understand these bills 

before they are brought to markup. 

I hope we are able to resist the temptation to take legislative shortcuts, to move 

legislation before it is adequately vetted and carefully considered. This Subcommittee tried that in the last Congress and it resulted in legislative failure after 

considerable confusion and wasted effort. 

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(197) 

FEDERAL AND STATE PARTNERSHIP FOR ENVIRONMENTAL PROTECTION ACT OF 2013; 

REDUCING EXCESSIVE DEADLINE OBLIGATIONS ACT OF 2013; AND FEDERAL FACILITY ACCOUNTABILITY ACT OF 2013 

TUESDAY, MAY 22, 2013 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON ENVIRONMENT AND THE ECONOMY

COMMITTEE ON ENERGY AND COMMERCE, 

Washington, DC. 

The subcommittee met, pursuant to call, at 10:17 a.m., in room 

2322 of the Rayburn House Office Building, Hon. John Shimkus 

(chairman of the subcommittee) presiding. 

Members present: Representatives Shimkus, Gingrey, Pitts, 

Latta, McKinley, Johnson, Tonko, Green, Capps, McNerney, Dingell, and Waxman (ex officio). 

Staff present: Nick Abraham, Legislative Clerk; David McCarthy, 

Chief Counsel, Environment/Economy; Tina Richards, Counsel; Environment; Chris Sarley, Policy Coordinator, Environment and 

Economy; Jacqueline Cohen, Democratic Senior Counsel; Greg 

Dotson, Democratic Staff Director, Energy and the Environment; 

and Caitlin Haberman, Democratic Policy Analyst. 

Mr. SHIMKUS. We are going to call the hearing back to order. 

This is a continuation of the hearing that started last week, and 

so on the second panel we have Mr. David Bearden, who is a Specialist in Environmental Policy from the Congressional Research 

Service, and also joined by Mr. David Trimble, who is the Director 

of Natural Resources and Environment from the Government Accountability Office. 

Gentlemen, your full statements have already been submitted for 

the record. You have 5 minutes. As you can see, I don’t think we 

are really pressed for anything immediately, so we will be generous. It really gives us a chance to understand this program and 

as follow-up questions, so with that, I would like to recognize Mr. 

Bearden for 5 minutes. And let us make sure the microphone is on 

and it gets pulled close to you. 

198 

STATEMENTS OF DAVID M. BEARDEN, SPECIALIST IN ENVIRONMENTAL POLICY FOR THE CONGRESSIONAL RESEARCH 

SERVICE; AND DAVID TRIMBLE, DIRECTOR OF NATURAL RESOURCES AND ENVIRONMENT, GOVERNMENT ACCOUNTABILITY OFFICE 

STATEMENT OF DAVID BEARDEN 

Mr. BEARDEN. Chairman Shimkus, Ranking Member Tonko and 

members of the subcommittee, my name is David Bearden and I 

am a Specialist in Environmental Policy for the Congressional Research Service. Thank you for inviting me to testify on behalf of 

CRS on legislation that would amend the Comprehensive Environmental Response, Compensation and Liability Act to address various aspects of the federal and state roles in the cleanup of environmental contamination and the applicability of state clean up requirements at both current and former federal facilities. In brief, 

the primary areas that the legislation would address include the 

designation of sites on the National Priorities List; credits toward 

state matching funds requirements at non-federal facilities; the selection of cleanup actions and opportunities for judicial review of 

such actions; the establishment of financial responsibility requirements; and the waiver of sovereign immunity at both current and 

former federal facilities. 

In serving the U.S. Congress on a non-partisan and objective 

basis, CRS takes no position on this legislation but has been asked 

by the subcommittee to identify the federal and state roles under 

CERCLA in existing law and the aspects of these roles that the legislation would address. The statements presented in this testimony 

are based on a preliminary analysis of the legislation within the 

time available. CRS remains available to assist the subcommittee 

in its consideration of this legislation, related issues and potential 

concerns among affected stakeholders. 

I will now just provide a brief summary of the existing framework of federal and state roles under CERCLA and then a summary of the main provisions of all three bills. 

Congress enacted CERCLA in 1980 in the 96th Congress in response to a growing desire for the federal government to pursue 

the cleanup of the Nation’s most hazardous sites, to protect human 

health and the environment. Under the Superfund program, the 

Environmental Protection Agency, EPA, may pursue cleanup and 

enforcement actions to respond to actual or threatened releases of 

hazardous substances into the environment. CERCLA established 

a broad liability scheme that holds past and current owners and 

operators of facilities, generators of wastes, and transporters of 

wastes who selected a facility for disposal, liable for cleanup costs, 

natural resource damages, and the costs of federal public health 

studies that are conducted by the Agency for Toxic Substances and 

Disease Registry. In conjunction with this liability scheme, 

CERCLA directs EPA to establish requirements for private entities 

to demonstrate their financial capability to satisfy cleanup liability 

if contamination were to occur, but EPA has not yet promulgated 

such requirements. 

The Superfund Amendments and Reauthorization Act of 1986 in 

the 99th Congress amended CERCLA to address the applicability 

199 

of the statute and state law to federal facilities, and amended various cleanup, liability and enforcement provisions of the statute. 

Several subsequent laws also have amended CERCLA for specific 

purposes. With respect to federal and state roles, which is the primary area of focus of the three bills, the Small Business Liability 

Relief and Brownfields Revitalization Act of 2002, enacted in the 

107th Congress, amended CERCLA to authorize federal grants to 

assist states and local governments for the cleanup of brownfield 

sites that are not addressed under the Superfund program, to give 

substantial deference to the states in EPA’s designation of sites on 

the National Priorities List, and to limit the use of federal enforcement authorities under CERCLA to pursue the cleanup of a site, 

if a state already is pursuing the cleanup under its own law. 

CERCLA directs EPA to maintain the National Priorities List to 

prioritize sites for federal response actions. Under CERCLA, federal response actions may include interim removal actions, as they 

are called, to address more immediate risks, and broader remedial 

actions to address long-term risks. Remedial actions also differ in 

that the use of federal Superfund appropriations is conditional 

upon the state agreeing to share the costs with the federal government, whereas removal actions may be fully federally funded with 

Superfund appropriations. 

Under federal regulation, a site also must be on the National Priorities List as an additional condition for EPA’s use of federal 

Superfund appropriations to finance the remedial actions. The 

cleanup of Superfund sites that are financed with private funds 

from the potentially responsible parties are not subject to this condition, and therefore do not necessarily require listing on the NPL 

to perform the remedial actions that are not funded with federal 

tax dollars. EPA may fund removal actions with federal Superfund 

appropriations to address immediate hazards, regardless of whether a site is on the National Priorities List. 

The response authorities of CERCLA also are available to federal 

agencies for the performance of the cleanup of federal facilities that 

are funded with separate appropriations apart from Superfund, 

and these separate appropriations are allocated directly to the 

agencies that administer those facilities. The Department of Defense and the Department of Energy administer the vast majority 

of federal facilities where cleanup is performed under the authorities of CERCLA and other relevant statutes. 

EPA and the states still play a role, however, in overseeing and 

enforcing the cleanup of federal facilities. EPA leads the oversight 

of the cleanup of federal facilities that are on the National Priorities List but still in conjunction with the states, and the states primarily are responsible for leading the oversight of the cleanup of 

federal facilities that are not on the National Priorities List where 

EPA does not have a similarly prominent role. 

CERCLA authorizes various mechanisms for the states and the 

public to participate in federal cleanup decisions. However, EPA, or 

the lead federal agency at a federal facility, generally is responsible 

for making the federal decisions. Those decisions, though, still may 

involve the application of state cleanup requirements if they may 

be more stringent than the federal requirement. 

200 

CERCLA authorizes citizen suits, including suits by states, to 

challenge federal decisions regarding response actions, both remediation and removal, but limits the timing of judicial review until 

after the action is taken. CERCLA also specifically authorizes 

states to bring action in U.S. district court to challenge the selection of remedial actions at a federal facility within its borders. 

Conditions for the use of federal Superfund appropriations also 

can be a factor in federal cleanup decisions that are made in consultation with the states at non-federal facilities. The use of federal 

Superfund appropriations to finance remedial actions generally is 

conditional upon the state agreeing to pay 10 percent of the capital 

costs, with the federal government paying 90 percent, and generally 100 percent of the costs of long-term operation and maintenance in maintaining any institutional controls that might be necessary over the long term. There is an exception for the treatment 

of groundwater under which the federal government may pay the 

full costs of operation and maintenance for the first 10 years of the 

remedy after which point the state would assume its responsibility 

for the 100 percent costs of the operation and maintenance. These 

state matching funds requirements do not apply to the use of federal Superfund appropriations for removal actions, nor to either remedial or removal actions that are carried out at federal facilities 

and funded fully by the federal government separately with appropriations to those agencies that administer those facilities. 

The legislation that is before the committee, the three bills collectively, would expand the role of the states in the cleanup of contaminated sites under CERCLA beyond the scope of the most recent amendments I mentioned earlier that were enacted in 2002 in 

the 107th Congress. The following points that I have outlined briefly identify how each bill would alter the state role in comparison 

to existing law. 

The first bill, the Federal and state Partnership for Environmental Protection Act of 2013, would make the following changes 

to existing law. It would expand consultation with affected states 

to include not only remedial actions but also removal actions, including consultation with state and local officials at federal facilities. Another provision would expand the categories of non-federal 

funds that states could apply as credits toward meeting matching 

funds requirements to include state oversight costs and in-kind expenditures. In-kind expenditures essentially are non-monetary contributions that may offset some of the costs. Another provision 

would codify in statute EPA’s general practice of obtaining the concurrence of the Governor of the state in which a site is located in 

making a decision to list a site on the National Priorities List and 

would give greater deference to state priorities in the listing process overall. It would also broaden the opportunity for judicial review of a remedial action, if a state were to object to the selection 

of the remedial action in writing. 

The next bill, the Reducing Excessive Deadline Obligations Act 

of 2013, has two primary provisions. The first provision would bar 

federal financial responsibility requirements that EPA may promulgate in the future from preempting state financial responsibility requirements that are in place on the effective date of any 

federal requirements that EPA may promulgate. The other proviVerDate Nov 24 2008 12:31 Nov 15, 2013 Jkt 037690 PO 00000 Frm 00206 Fmt 6601 Sfmt 6601 F:\MY DOCS\HEARINGS 113\113-43 CHRIS
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sion is related to the Solid Waste Disposal Act and not CERCLA, 

and it would amend the Solid Waste Disposal Act to require EPA 

to review and revise regulations promulgated under that statute as 

determined appropriate by the agency, rather than under existing 

law requiring review and revision as necessary every 3 years. 

The last bill, the Federal Facility Accountability Act of 2013, as 

its title suggests, would focus on federal facilities, and in two respects would expand the waiver of sovereign immunity at federal 

facilities to include not only current but also former federal facilities, to encompass the entire phase of the cleanup process for both 

remedial and removal actions, and to clarify the extent to which 

substantive and procedural requirements of state law apply to federal facilities regardless of whether a federal facility is on the NPL, 

the National Priorities List. The other respect of the bill would authorize EPA to review the actions taken by other federal departments and agencies under CERCLA at federal facilities regardless 

of whether a facility is on the National Priorities List, and also 

would allow states to request such a review by EPA to ensure consistency with EPA guidelines, rules, regulations or criteria. 

That concludes the remarks of my prepared statement, and 

thank you for the opportunity to appear before the subcommittee 

today, and I would be happy to address any questions you may 

have. 

[The prepared statement of Mr. Bearden follows:] 

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Mr. SHIMKUS. Thank you, Mr. Bearden. 

And now I would like to recognize Mr. David Trimble, who is 

from the Government Accountability Office. Sir, welcome. Same 

thing, your full statement is in the record. You have 5 minutes. Obviously, I was very generous because we are here to get a good 

background on these policies and pieces of legislation, so you are 

recognized. 

STATEMENT OF DAVID TRIMBLE 

Mr. TRIMBLE. Thank you. Chairman Shimkus, Ranking Member 

Tonko and members of the subcommittee, my testimony today focuses on GAO’s work on four key issues: the role of the states in 

cleaning up hazardous waste sites, federal liabilities in management of sites listed on the NPL, the National Priorities List, commonly referred to as Superfund sites, the challenges and liabilities 

associated with contaminated hardrock mining operations, and litigation under environmental statutes including CERCLA, the statute governing the Superfund program. 

First, states play a critical role in cleaning up sites listed on the 

NPL and severely contaminated sites that are not listed on the 

NPL. After a hazardous site is identified, EPA often working with 

a state will evaluate the risks to the environment and to human 

health and assign a hazard ranking score. Sites posing hazards 

above a certain threshold are eligible for listing on the NPL. Not 

all sites with serious contamination and a high score are placed on 

the NPL, and the EPA policy is to not list such sites without approval from the relevant state. Additionally, EPA cannot use 

money from Superfund for long-term remediation activities unless 

the state has also agreed to pay at least 10 percent of these costs. 

The cleanup of sites not on the NPL can be managed by EPA as 

a Superfund alternative site or by the states and other entities 

under other cleanup authorities. In April, we reported that 42 percent of sites assessed with contamination severe enough to be eligible for listing on the NPL were being managed as Superfund sites 

or Superfund alternative sites. The remaining 58 percent were 

managed by other cleanup programs. Notably, states managed the 

cleanup of more Superfund-caliber waste sites outside of the Superfund program than EPA oversees in the Superfund program. 

Second, federal agencies, primarily DOD, have substantial cleanup and financial liabilities at NPL sites. Specifically, DOD is responsible for 80 percent of the 156 federal Superfund sites. The 

cost to clean up these sites represents a significant financial liability for the government. In addition, in 2010, we found that DOD’s 

refusal to sign a required interagency agreement with EPA on how 

these cleanups should proceed had complicated cleanup at 11 DOD 

NPL sites. As a result of our work, DOD has decreased this number to two sites. Let me note, however, that these sites are at bases 

with large military and civilian populations. That report also recommended that EPA seek to increase its authority to hasten cleanups by other federal agencies, but no changes have been made to 

the relevant Executive Order. 

Third, the federal government faces significant financial challenges and liabilities associated with hardrock mining operations. 

From 1997 to 2008, the federal government spent over $2.6 billion 

209 

to reclaim abandoned hardrock mines on federal, private and Indian lands with the EPA paying $2.2 billion of this amount. In 

2008, GAO estimated that there were at least 33,000 abandoned 

hardrock mine sites with environmental problems. One factor that 

contributes to reclamation costs on federal lands disturbed by mining operations is inadequate financial assurances required by the 

Bureau of Land Management. These assurances are imposed on 

new mining operations and are used to reclaim a site if the operator fails to adequately do so. In 2012, BLM reported implementing 

our recommendation to improve the sufficiency of these assurances. 

Finally, EPA often faces litigation over its regulations and other 

actions. Companies, interest groups, states and citizens can sue 

EPA under CERCLA and other environmental statutes, and these 

suits can be costly and time-consuming. Such litigation includes citizen suits to compel EPA to take action when it does not meet 

deadlines, challenges to regulations and permitting decisions, or 

lawsuits by potentially responsible parties at hazardous waste 

sites. In 2011, we reviewed litigation associated with 10 environmental statutes and found such cases averaged about 155 per year, 

the majority of this litigation related to the Clean Air Act. Overall, 

trade associations and private companies comprised 48 percent of 

the litigants followed by environmental groups at 30 percent, and 

non-federal and other parties made up the remainder. Superfund 

cases represented about 2 percent of the total cases in our study. 

This is consistent with our 2009 report on Superfund litigation, 

which found that litigation had decreased by almost half from fiscal 

years 1994 through 2007. Regarding the cost of this litigation, we 

found that the Department of Justice spent about $3.3 million per 

year defending EPA. Additionally, payments made to the prevailing 

parties in these cases to cover attorney fees and court costs averaged about $2.1 million per year, with about three-quarters of 

these payments going to environmental and citizen groups. 

This completes my statement. I would be pleased to respond to 

any questions. 

[The prepared statement of Mr. Trimble follows:] 

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Mr. SHIMKUS. Thank you, and now I would like to recognize myself for 5 minutes for initial questions. 

Before I go on to the prepared questions, Mr. Bearden, I was involved with the, I think you called it the Small Business Liability 

Relief Act mentioned in the opening statement. That was one of the 

pieces of legislation that I helped originally cosponsor to get to 

small businesses, the Main Street stores, out of this litigation trap 

from the potential responsible parties who then would go after, and 

these folks were de minimis parties to the suit, and it was a great 

victory, and I think it helped keep the small actors out of the litigation. So thanks for mentioning that. I did mention it last week but 

I didn’t remember the name, couldn’t remember the year it passed 

and all that other stuff. 

Mr. Bearden, can you explain the preference in CERCLA and environmental law generally for non-preemption of state laws, and 

then tell us if the REDO Act would further that objective. 

Mr. BEARDEN. Well, in general, there is a provision in existing 

law and CERCLA that doesn’t allow preemption of state laws, or 

prevent state laws, and states are free, of course, to enact their 

own cleanup laws, and many have; this is sort of a general premise 

with respect to the bill that would specifically add preemption in 

the circumstance of a financial responsibility requirement. So in 

that case, when EPA promulgates financial responsibility requirements and then in applying those requirements, it would not be allowed to preempt a state requirement that is in place on the effective date. 

Mr. SHIMKUS. Would the Federal Facilities Accountability Act 

also further that objective? 

Mr. BEARDEN. Could you restate the question, please? 

Mr. SHIMKUS. Would the Federal Facilities Accountability Act 

also further that objective? 

Mr. BEARDEN. Oh, the objective of preemption? 

Mr. SHIMKUS. Correct. 

Mr. BEARDEN. It expands the waiver of sovereign immunity to 

apply state substantive and procedural requirements to federal facilities, so it is similar to that objective in terms of allowing state 

law to apply. 

Mr. SHIMKUS. Thank you. In your opinion, are there aspects of 

CERCLA that could be improved or ‘‘modernized’’, in particularly 

the waiver of sovereign immunity, and do the bills the subcommittee is considering today take steps toward making some improvements to the existing statute? 

Mr. BEARDEN. Well, CRS takes no position or opinion about the 

legislation, but what I could say in response to your question is 

that what the bills would do are similar in the overall policy vein 

of the 2002 amendments that would amend the law in ways to be 

consistent with a greater number of state laws that are in place 

and to address some longstanding issues about whether the waiver 

of sovereign immunity applies to both current and former federal 

facilities, as those issues have lingered for a number of years. 

Mr. SHIMKUS. So those are possible positive provisions. Is there 

anything in the legislation that could be positive that we may have 

left out that could do the same thing and move us forward? 

233 

Mr. BEARDEN. Well, in terms of positive, that of course would be 

a judgment call, and again, CRS would take no position on it, but 

the types of issues that are addressed in the bills are numerous 

longstanding issues that have been concerns of the states and other 

stakeholders about the federal and state roles, so they are not new 

issues; they are continuing issues that have been addressed by 

Congress previously in different ways. 

Mr. SHIMKUS. Thank you. Mr. Trimble, your testimony said as a 

matter of policy, EPA seeks concurrence from state governors or 

environmental agency heads before proposing a site on the National Priorities List. If it is a matter of established EPA policy, do 

you see a problem with codifying the policy in the statute? 

Mr. TRIMBLE. We have not done specific work on that. I think the 

questions that would have to be looked at whether there are specific cases where EPA might still need the authority to list a site 

over state objection, and I am thinking off the top of my head, I 

am thinking key issues may be on sites that sort of cross borders 

between states so there could be a dispute between states or could 

be perhaps a situation where the state is somehow responsible for 

the pollution, but I am just—— 

Mr. SHIMKUS. But you don’t know of any particular example that 

we could site right now? I understand that concern, but I am just 

wondering if there is an actual case. 

Mr. TRIMBLE. I don’t know, sir. 

Mr. SHIMKUS. CERCLA and the regulations implementing 

CERCLA already provides the states with limited consulting role 

before remedy selection. Do you see a problem with amending the 

statute to codify the regulations and assure that states are consulted during selection of the remedy? 

Mr. TRIMBLE. Again, we are not taking a position on the legislation. We have not done any work on this issue of how effective the 

state consultation mechanisms are within the Superfund program. 

I think it is an interesting question, but that is not something that 

we have delved into in our past body of work. 

Mr. SHIMKUS. In testimony last week, it was interesting, the 

point being, there was some desire to ensure that they have consultation early in the remedy because their complaint was, we have 

the costs at the end, we have the operational and maintenance 

costs at the end, and so maybe we should have some role in saying 

how the remedy or at least give our opinion because we are going 

to be on the hook for the longevity of the program. 

Mr. TRIMBLE. Yes, and I think again, because of the financial requirements for the state to kick in 10 percent on the remedial costs 

and also to sign up for the lifetime costs of the operation and maintenance, there is a hook for the state, again, but we have not 

looked at whether that gives them enough leverage in the process 

to protect their interests. I think one of the questions that came up 

last week, and it is to your point, is, you know, how effective is the 

cost-benefit analysis EPA is doing when they are choosing their 

path forward and does that bias toward short upfront costs and 

higher long-term costs or not, but that is a good question but it is 

not something we have looked at. 

Mr. SHIMKUS. Great. Thank you. The chair now recognizes the 

ranking member of the subcommittee, Mr. Tonko, for 5 minutes. 

234 

Mr. TONKO. Thank you. Thank you very much. I thank the chair 

for reconvening our hearing today. We may not cover every issue, 

but as our additional witnesses appear, they help broaden and improve the record, so thank you very much. 

The hearing last week gave me reservations about the bills under 

consideration. Not a single witness gave unqualified support to the 

bills we are examining today. In fact, we heard testimony that one 

of the bills we are considering would increase litigation and delay 

the cleanup of contaminated sites. One of the majority’s witnesses 

explained that Superfund now contains a bar on pre-enforcement 

judicial review. This provision is important because it prevents litigation from delaying needed actions to address releases of hazardous substances that threaten human health and the environment. 

So Mr. Bearden, one of the bills we are considering today would 

reverse this longstanding policy, would it not? 

Mr. BEARDEN. Yes, with respect to states filing objections to the 

selection of a remedy. 

Mr. TONKO. If enacted, a responsible party or anyone else, for 

that matter, could go to court and sue EPA before a cleanup even 

begins. Is that correct? 

Mr. BEARDEN. If a state were to file a written objection and 

someone were to have standing under that provision, yes. 

Mr. TONKO. And that would be before the cleanup begins? 

Mr. BEARDEN. The way the provision is worded, the trigger of the 

timing is when the state files its written objection. 

Mr. TONKO. OK. That leg could delay then the cleanup of contaminated sites, could it not? 

Mr. BEARDEN. That would have to be demonstrated over time. 

Whether it would delay it would depend on the nature of the individual suit. 

Mr. TONKO. We also received testimony last week that a responsible party could have a financial incentive to go to court to delay 

cleanup and argue for a less protective cleanup remedy. Do you 

agree with that assessment? 

Mr. BEARDEN. That would involve speculation, and what a party 

may be motivated by, CRS cannot comment on that, but again, 

anyone who may have standing under that provision once the state 

files its objection could at least pursue the matter. 

Mr. TONKO. Which would affect the time element. The end result 

could be that judges decide how to clean up Superfund sites, and 

none of the witnesses last week seemed to think that that would 

be a good scenario. 

Mr. Trimble, we have seen the problems with litigation, haven’t 

we? Has litigation been a problem under Superfund in the past? 

Mr. TRIMBLE. As we have reported, I think initially there was a 

heavy amount of litigation but slowed over time as the court settled 

some legal issues and the number of sites being added slowed 

down, and the EPA increased its reliance on settlement agreements 

out of court. The number of those cases has dramatically gone 

down. Right now, I believe it’s 2 to 5 percent of all litigation cases 

that we looked at in our list, not as large as you would think it 

would be, given the universe. 

235 

Mr. TONKO. And can you give us a sense of the costs of those litigations? 

Mr. TRIMBLE. Yes. There are a couple of costs. One is the Department of Justice costs to defend EPA, and the numbers we have are 

for about 10 environmental statutes, and I think their costs were 

about $3 million per year, if I am remembering correctly, and that 

payments were about $2 million pear year. 

Mr. TONKO. And what have the recent trends been in Superfund 

litigation over the recent years? 

Mr. TRIMBLE. Well, in our report from a couple years ago, we 

found that it had decreased, I believe, by over half. 

Mr. TONKO. And that is in duration and in cost? 

Mr. TRIMBLE. That was just number of cases. 

Mr. TONKO. OK. And can you speak to the complexity of those 

cases? 

Mr. TRIMBLE. No, I don’t have any information on the complexity 

in terms of the trends of those. 

Mr. TONKO. Well, that certainly is a positive trend, but I am concerned that it could be reversed by lifting the bar on pre-enforcement judicial review. Is that a legitimate concern, in your opinion? 

Mr. TRIMBLE. Well, again, we don’t opine on the pending bills, 

but clearly as sort of the rules of the road have settled, the litigation has declined over time in the program. 

Mr. TONKO. Mr. Chair, I hope we can give this the bipartisan attention it deserves. No one, in my opinion, would be well served if 

we end up moving legislation that increases litigation and therefore 

would cause delays in the cleanup of contaminated sites, which 

would then really speak to the overall mission statement and soulfulness of the legislation. So with that, Mr. Chair, I yield back. 

Mr. SHIMKUS. The gentleman yields back his time, and I want 

to assure him that as conservative Republicans, additional litigation is something that we are not interested in. So I think there 

is some language that could be added to ensure that that does not 

happen. 

The chair now recognizes the gentleman from Ohio, Mr. Latta, 

for 5 minutes. 

Mr. LATTA. Thank you, Mr. Chairman, and gentlemen, thanks 

very much for your testimony today. 

Mr. Trimble, if I could start my questions with you. In the 1990s, 

GAO reported that within the EPA’s cleanup budget for CERCLA, 

less than 50 cents of the dollar was spent on dirt-moving cleanup 

versus oversight and administrative costs. Is that still the case? 

Mr. TRIMBLE. We have not done recent work on taking apart 

their costs for the recent cleanup so I am not sure what the ratio 

is. I know there is a lot of work, I am sure still even today, in 

terms of investigation and assessment as opposed to final construction. 

Mr. LATTA. Well, I guess when you say that you haven’t really 

been able to take it apart, is there a way that you could get a current amount? 

Mr. TRIMBLE. It is not something we readily have. We would 

have to do a review on that. 

Mr. LATTA. If you could provide that, I think the Committee 

would like to know what that ratio is now because if it is still at 

236 

that 50/50—because I know of sites out there that really needed 

cleaned up, and at 50 cents on the dollar, that is not helping those 

sites. 

If I could go on then, it seems also that many states have developed constructive working relationships with the Department of 

Defense, particularly utilizing the Defense-state Memorandum of 

Agreement. Are you familiar with the general working relationship 

between other federal land managers and states on non-NPL sites? 

Mr. TRIMBLE. I think we have done some work. I am personally 

not that familiar with it. I know we had done work on the cleanup 

of mines, so the relationship with the EPA and BLM, for example, 

and we have done work in that area. 

Mr. LATTA. Let me ask this: is there a distinction between the 

relationship between DOD and DOE may have with the states 

versus the federal land managers, for example? 

Mr. TRIMBLE. I am not familiar with it. Again, we have not 

looked into the relationship between states and DOD or states and 

EPA, for that matter. Regarding DOD, we have reported on difficulties where DOD has refused to sign interagency agreements 

with EPA governing the cleanup of NPL sites. 

Mr. LATTA. You say that DOD has not signed. Is there a reason 

for that? 

Mr. TRIMBLE. Not that we can understand. This is an ongoing 

issue. In our report from a couple years ago, we had identified 11 

sites where they had refused to sign the agreement, which is required under CERCLA. After our report, they took action, and now 

there are only two sites. One of these is Tindall Air Force Base, 

and even in that situation with Tindall, EPA has issued a RCRA 

order, which DOD has also not complied with. So there are still letters going back and forth regarding the matter. Regarding the 

RCRA matter at DOJ, DOD objected to EPA issuing the order. DOJ 

upheld EPA’s authority to issue it, and we don’t have any ongoing 

work on this, we are just following the issue because it is something we have done work in the past on, but it is a significant issue 

in terms of hampering the ability of the EPA to oversee the effectiveness of the cleanup. 

Mr. LATTA. Thank you. 

Mr. Bearden, if I could ask you quickly, can you explain the state 

cost share requirement under CERCLA and maybe give us some insight regarding why states are concerned with the EPA selecting 

the remedies that focus on short-term containment rather than 

long-term stewardship? 

Mr. BEARDEN. The federal-state cost sharing proportion, as outlined in my prepared statement, is generally 90 percent share of 

the federal government for the capital costs of the remedial action, 

10 percent shared by the state, and again, 100 percent of operation 

and maintenance with the exception of treatment of groundwater. 

So for containment methods that may be a concern for the state in 

terms of being responsible for 100 percent of the long-term operation and maintenance, for example, if there is a waste cap that 

has to be maintained for many years, if not decades, the state 

would be fully responsible for those costs under existing law. 

Mr. LATTA. Let me just follow up with that. Would a change in 

the cost share provision in CERCLA address these state concerns? 

237 

Mr. BEARDEN. If the cost share provision were changed to have 

the state bear less than 100 percent, then that would increase the 

necessity for federal resources and then it may affect decisions that 

are made. The requirement in existing law is for EPA to consider 

short- and long-term cost-effectiveness in assessing the selection of 

the remedy, so there is a statutory requirement to consider costeffectiveness. 

Mr. LATTA. OK. And could you also explain how the criteria for 

selecting remedial action may be relevant, and would they also 

need to be addressed? 

Mr. BEARDEN. I am not sure if I understand your question, sir. 

Mr. LATTA. Well, in explaining the criteria for selecting remedial 

action. 

Mr. BEARDEN. The criteria for selecting remedial action under existing law are that there be applicable, relevant and appropriate requirements. There is a whole host of criteria in statute and regulation on determining what is applicable, relevant and appropriate at 

a site. Generally, a state requirement can be applied as well if it 

is more stringent than the federal requirement. But then again, 

those criteria may allow for exclusions of some standards under 

those criteria. 

Mr. LATTA. Just briefly, if I may, Mr. Chairman, I see my time 

is expired, but would also need to be addressed, do you think, those 

remedial actions if we are looking at that? Should those actions be 

addressed out there? 

Mr. BEARDEN. Well, if one is looking at the federal and state 

roles in making those decisions and one is concerned about who is 

sharing the cost, one would need to consider the existing criteria 

under which those decisions would be made. 

Mr. LATTA. Thank you. Mr. Chairman, my time is expired and 

I yield back. Thank you very much. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

recognizes the chairman emeritus of the committee, Mr. Dingell, 

for 5 minutes. 

Mr. DINGELL. Mr. Chairman, I thank you for your courtesy and 

I commend you for holding this hearing. I want to begin with congratulations to Mr. Bearden and Mr. Trimble. You have given good 

testimony this morning, and your agencies have been agencies that 

this committee has looked to most urgently for your help in times 

past as well as today. These questions are for Mr. Trimble, and I 

am hopeful to that the degree you can you will answer yes or no. 

Relating to the amendments to Section 108 of CERCLA, can you 

tell the subcommittee how many states have promulgated financial 

responsibility requirements? 

Mr. TRIMBLE. I do not know the answer. 

Mr. DINGELL. Could you check and submit that? 

Mr. TRIMBLE. I can check to see if we have that. 

Mr. DINGELL. And perhaps you would want to make a comment 

on that, Mr. Trimble, but I assume you will want to do that for the 

record, or rather Mr. Bearden. 

What are the amounts set in each state and for what classes of 

facilities? I assume that is a matter that you will have to submit 

for the record also. 

238 

Now, the next question: does anything prevent a state from obtaining funding from fees, taxes or other sources of revenue to 

clean up toxic waste sites in the respective states and thus have 

total control over the remedy selected or removal action taken? Yes 

or no. This is to Mr. Trimble. 

Mr. TRIMBLE. Not to my knowledge. 

Mr. DINGELL. What does that mean? 

Mr. TRIMBLE. No. 

Mr. DINGELL. Next question, if you please, Mr. Trimble. Section 

113(h) provides new opportunity for lawsuits where a state simply 

writes a letter objecting to a remedy selected by the President after 

such letter is posted by the state. Would this new provision also 

allow the responsible party who polluted the site in the first place 

to litigate and to challenge the remedy? Yes or no. 

Mr. TRIMBLE. I am not a lawyer, but I would think it would. 

Mr. DINGELL. You would think it would. Do you have a comment 

on that, Mr. Bearden? 

Mr. BEARDEN. I addressed that question, a similar question, earlier. Assuming someone would have standing under that provision, 

the trigger would be, as you mentioned, the state filing a written 

objection to the selection of the remedy. 

Mr. DINGELL. Thank you. Now, this is to Mr. Trimble. Mr. 

Trimble, would this provision allow an environmental group to also 

challenge the remedy if they could get a state to write such a letter? Yes or no. 

Mr. TRIMBLE. Yes. 

Mr. DINGELL. And I would assume that almost anybody who 

could involve themselves in this could enter the litigation of the 

question, could they not? 

Mr. TRIMBLE. I would defer to Mr. Bearden but I—— 

Mr. DINGELL. Please, Mr. Trimble. 

Mr. TRIMBLE. I would assume so, but again, we have not done 

audit work in this area but my understanding would be that is the 

case. 

Mr. DINGELL. Mr. Bearden? 

Mr. BEARDEN. As with any litigation, it would depend on whether someone has standing, and a judge would have to decide that 

based on the circumstances. 

Mr. DINGELL. We would significantly increase the number of persons who have standing by this provision, would we not? 

Mr. BEARDEN. It does broaden the opportunity for judicial review. 

Mr. DINGELL. Now, what happens to the citizens and the surrounding communities that is being exposed to the hazardous substance and hazardous conditions or to communities and persons in 

the communities who wish the site to be redeveloped to create jobs 

while the remedy decision is litigated in the federal courts? They 

just have to sit and grind their teeth, don’t they? Yes or no. 

Mr. TRIMBLE. I don’t know about the grinding of the teeth 

but—— 

Mr. DINGELL. I know if I were, I would. This has a significant 

chance of increasing the number of litigants and the amount of 

time that is involved in concluding the cleanup of these sites, does 

it not? 

239 

Mr. TRIMBLE. I would suspect that the delay would add to the 

time, yes. 

Mr. DINGELL. All right. Mr. Chairman, as I stated last Friday, 

I do not see the factual record in this matter justifying significant 

changes to the existing law here. The changes to Section 113(h) expand the opportunities for litigation, meaning communities would 

have to live longer without a cleanup remedy. Section 121(f) of current law already details requirements for substantial and meaningful involvement by each state in initiation, development and selection of remedial actions. Then there is an amendment to Section 

108. In this section, the Congress wanted to EPA to establish financial responsibility requirements for various classes of facilities 

so that they could maintain evidence of financial responsibility consistent with the degree and the duration of the risk associated with 

the production, transportation, treatment, storage or disposal of 

hazardous substances. The Agency has been dilatory in implementing this provision. However, instead of calling the EPA to task 

for failing to act, the legislation here seems to have a goal to eliminate the one provision that was imposing a mandatory duty on 

EPA to initiate the action. I feel with regret that the amendments 

appear to be solutions in search of a problem, and I hope that as 

we continue our discussion of these matters and our evaluation of 

these matters, it will be possible to address the concerns that I 

have expressed, and I thank you for letting me run over time. 

Mr. SHIMKUS. And I thank the gentleman. The chair now recognizes the vice chairman of the subcommittee, Mr. Gingrey, for 5 

minutes. 

Mr. GINGREY. I thank the chairman for yielding, and Mr. 

Trimble, I will address my first question to you. In an October 2009 

report on formerly used defense sites—I think that’s GAO report 

1046—GAO found that the Army Corps has not consistently conducted CERCLA 5-year reviews to assure continued protectiveness 

of remedies on sites where the chosen remedy does not allow for 

unrestricted use and unrestricted exposure. So did GAO find that 

the Corps routinely complies with state land-use control and environmental covenant requirements for such sites? 

Mr. TRIMBLE. I do not recall from that report if it got into the 

details of where there was noncompliance of state-specific requirements. The finding was, if you go through remedial action and you 

clean up a site and you say your construction is complete and you 

are entering the operation and maintenance phase, at that point 

you have to monitor it every 5 years to make sure it is still in good 

shape. What that review found was that for the formerly used defense sites, the Army Corps was not doing a good job at monitoring 

those sites to make sure that everything was still as it should be 

or if new contamination had emerged or new remedies would have 

to be put in place. Now, the basis for how it could have gone off 

the rails might have been state requirements versus federal requirements, and I don’t know off the top of my head if that report 

got into that level of detail. 

Mr. GINGREY. Would that be true for commercial sites as well? 

Mr. TRIMBLE. The 5-year requirement would be there but who 

would be doing it would be different. 

Mr. GINGREY. But the 5-year requirement is there. 

240 

Mr. Bearden, we also understand that there are EPA regulations 

pertaining to consultations with the states regarding remedy selection, and we understand that the statute already requires consultation at certain points in the process. Do you think that codifying 

that regulatory practice in statute would be a bad thing? 

Mr. BEARDEN. Well, there are many instances where Congress 

chooses to codify a regulatory requirement to elevate it in statute, 

and that is a policy decision of the Congress. 

Mr. GINGREY. Well, wouldn’t codifying the regulations regarding 

consultation regarding remedy selection ensure consistency among 

all the EPA regions and ensure that other federal agencies also 

consult with states when selecting a remedy? 

Mr. BEARDEN. Well, the regulatory requirements already apply to 

all regions and to other federal agencies who implement a national 

contingency plan, which are the regulations to which you are referring. Whether in practice they implement them consistently may be 

a question, but they already are required to follow those regulations. 

Mr. GINGREY. Well, the question was, wouldn’t codifying the regulations make this work better and more consistently? 

Mr. BEARDEN. It would elevate it as a statutory requirement. It 

already is a requirement. There may be questions of application on 

a consistent basis. 

Mr. GINGREY. Well, that is my whole point. CERCLA specifically 

requires consultation with the states before selecting a remedy. 

The Federal-state Partnership for Environmental Protection Act 

would amend the timing of the consultation to ensure that states 

are consulted during the process of selecting a remedy. What is 

your opinion about changing the timing for the consultation? 

Mr. BEARDEN. Well, CRS would make no opinion on any amendments, but in terms of timing, that difference would be in current 

law, it is in determining the remedy, and that may be interpreted 

as the point at which you are selecting as opposed to earlier in the 

process before a determination is made, so the bill would expand 

the time frame to an earlier stage of the process in statute. 

Mr. GINGREY. Mr. Chairman, I see I have got about 45 seconds, 

if anyone on this side, or do you want me to yield back to you. 

Mr. SHIMKUS. Just yield back. 

Mr. GINGREY. I will yield back. 

Mr. SHIMKUS. The gentleman yields back. The chair now recognizes the gentleman from California, Mr. McNerney, for 5 minutes. 

Mr. MCNERNEY. Thank you, Mr. Chairman, for holding this follow-up hearing. 

Mr. Bearden, in your testimony you stated that the states have 

input into the designation of the NPLs. Can the EPA list sites on 

the NPL without state concurrence or cooperation? 

Mr. BEARDEN. EPA has the statutory authority to list a site without state concurrence. I don’t know of an example in which that 

has occurred. The amendments in 2002 address that very issue 

that limited EPA’s authority to list a site without the state’s concurrence. A state may request EPA to defer and there would have 

to be a set of conditions that EPA would determine that a state 

was not making adequate progress toward the cleanup in order to 

241 

list the site despite a state’s request to defer the listing. So it is 

more limited in current law as a result of the 2002 amendments. 

Mr. MCNERNEY. Well, last week we heard from state organizations who claim to have little or no input into the process. Could 

you explain the disconnect? 

Mr. BEARDEN. Well, I can’t speak to their level of understanding 

but if one reads Section 105(h) of CERCLA, which was added again 

in the 2002 amendments, a state merely has to request that EPA 

not list a site, and at that point that limits EPA’s authority, again, 

unless a determination is made under the statutory criteria that 

listing is necessary to protect human health and the environment. 

Mr. MCNERNEY. OK. There is a disconnect there, clearly. You 

said that the Federal Facility Accountability Act of 2013 would 

hold federal agencies more accountable at federal facilities to include current and former federal facilities to encompass the entire 

phase of the cleanup process and to clarify in greater detail the extent to which substantive and procedural cleanup requirements of 

state law apply to federal facilities. Can you explain the impact 

that this would have on listing of NPLs? 

Mr. BEARDEN. Well, it would not have a direct bearing on the 

listing of sites on the National Priorities List. It would determine, 

based on the language in the bill, whether it would apply to either 

National Priorities List sites and non-National Priorities List sites. 

It would determine what requirements that are substantive and 

procedural of the state may be applied to the cleanup. It would determine how the cleanup may be performed and apply regardless 

of listing status. 

Mr. MCNERNEY. Thank you. Mr. Trimble, in your testimony you 

stated that CERCLA authorizes the EPA to compel potentially responsible parties to clean up their sites. Do you think that the proposed bills would undermine the EPA’s authority in this compelling 

the potentially responsible parties to clean up their sites? 

Mr. TRIMBLE. I don’t know if I have any work that would speak 

directly to that, and I think you would have to see how these 

things were implemented. I think if EPA is restricted in taking immediate, sort of response actions, that could be one issue that could 

come up. I am not sure I have much more to offer than that on that 

question. 

Mr. MCNERNEY. Well, the authority for funding the actual cleanup expired 18 years ago despite the increasing financial liability 

since that time. Rather than trying to restructure the authority in 

CERCLA, Congress should, in my opinion, reinstate the fees on 

which the old funds relied. Are there other funding sources that 

would be viable to supplement the fund? 

Mr. TRIMBLE. GAO has not taken a position or looked at alternative funding issues for Superfund. The tax was one option. Right 

now it is coming out of general taxes, general fund. We have done 

work looking at anticipated future costs in the Superfund program, 

and those costs are very difficult to measure for a variety of reasons. Superfund program managers have estimated that their costs 

will likely exceed available monies going forward as many of these 

sites get more complex and complicated, for example, some of the 

mining sites. But we don’t have an opinion. It is more of a policy 

242 

question in terms of where the money comes from, so we don’t have 

a position on that. 

Mr. MCNERNEY. But there is going to be a critical shortage of 

funds from all sources to clean up these sites. 

Mr. TRIMBLE. Well, the program will continue to need a lot of 

money going forward. 

Mr. MCNERNEY. Thank you. I yield back, Mr. Chairman. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

recognizes the gentleman from Ohio, Mr. Johnson, for 5 minutes. 

Mr. JOHNSON. Thank you, Mr. Chairman, for the time, and gentlemen, thank you both for being here with us today. 

Mr. Trimble, has your office ever conducted a review of other federal agencies’ implementation of institutional controls as a part of 

removal or remedial actions conducted pursuant to authorities 

granted under CERCLA or Executive Order 12580? 

Mr. TRIMBLE. To my knowledge, we haven’t. I mean, I can certainly check when I go back, but I am not familiar with prior work 

on that issue. 

Mr. JOHNSON. Would you please check and get back with us? 

Mr. TRIMBLE. Absolutely. 

Mr. JOHNSON. I would appreciate that. Do you think it would be 

constructive to conduct such a review? 

Mr. TRIMBLE. Absolutely. 

Mr. JOHNSON. Let me go also to you, Mr. Trimble. In June of 

2006, GAO conducted a review of EPA’s implementation of institutional controls by the EPA Superfund program. In this or any subsequent review, were you able to ascertain whether EPA routinely 

complies or requires compliance with state land-use control or environmental covenant laws and regulations? 

Mr. TRIMBLE. And I apologize, I am not familiar with that report 

and I would love to take that for the record, if I could. 

Mr. JOHNSON. Good. I would appreciate that as well. Would it be 

fair to anticipate that requiring federal agencies, in your mind, 

would it be fair to anticipating that requiring federal agencies to 

comply with state laws that require that institutional control be 

implemented and enforced in perpetuity that this would help ensure that these controls are in fact maintained for as long as they 

are necessary to protect human health and the environmental? 

Mr. TRIMBLE. I am curious about the work we have done in the 

past but I think the key question is whether or not they currently 

are considered in the existing procedures and processes, whether or 

not there is a disconnect between the states’ desires to apply certain controls and whether those are actually going on into effect 

and whether or not they have enough leverage to make that happen. If there is a breakdown there, then certainly there is an issue 

to be looked at. 

Mr. JOHNSON. Thank you. If you would get back to the committee 

on that, I would appreciate it. 

Mr. TRIMBLE. Absolutely. 

Mr. JOHNSON. Mr. Chairman, with that, I will yield back my 

time. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

recognizes the gentlelady from California, Ms. Capps, for 5 minutes. 

243 

Mrs. CAPPS. The bills before us may affect many aspects of the 

program’s ability to accomplish this goal but my time is limited so 

I want to focus on one particular provision. My first question is 

going to be for you, Mr. Bearden. The federal and state partnership 

bill we are examining includes an amendment that could complicate and impede, in my opinion, the streamlined process currently in place for short-term Superfund removal actions. So I 

wanted to ask you, Mr. Bearden, can you explain what removal actions are and why we need to be able to undertake them quickly? 

Mr. BEARDEN. Removal actions can be conducted in two different 

capacities. One is referred to programmatically as time critical. The 

other is non-time critical. At any site where a release is reported 

and EPA, state and local officials become aware of it, the very earliest actions to stabilize the site may be considered in practical 

terms to be the early emergency phase of the response, but the removal action can continue much longer than that, especially the 

non-time-critical removal actions. So there are various phases even 

for the removal aspect of the process. 

Mrs. CAPPS. So some removal actions are very pressing and are 

needed to address imminent public health threats. I mean, that 

could be the trigger that necessitates quick action. Am I right? 

Mr. BEARDEN. Correct. The initial response is a removal, and the 

very earliest stage of the response is to stabilize the site and prevent potentially harmful exposures at the very earliest stages. 

Mrs. CAPPS. OK. Moving on, these imminent threats are why 

these actions have always been done in a streamlined process. In 

testimony they provided last week, the EPA expressed concern that 

this legislation as currently drafted would require consultation before removal actions could even begin. The Agency said the bill 

could, and this is a quote from EPA, ‘‘The bill could have an adverse impact on your emergency removal program by introducing 

potential delays when EPA needs to conduct time-critical emergency removal actions.’’ Having a Superfund site in my district, 

this is a big concern for me, the timing that we are talking about. 

So Mr. Bearden, do you agree with EPA’s assessment that this 

procedural change has a potential to delay removal actions? 

Mr. BEARDEN. Well, CRS would not agree or disagree with an 

agency position but what I can say is, at the very earliest stages 

of the emergency response, even under the regulations of the National Contingency Plan that EPA promulgated, state and local officials are expected in most cases to be the first responders. So it is 

actually the state and local officials who are on site. Most often it 

is the local fire department, local police department, to stabilize the 

emergency conditions and then it becomes elevated to EPA’s attention. 

Mrs. CAPPS. And your careful delineation of those steps indicates 

that the reason they are done that way is to enable a prompt response and timely response. 

I have only one question left, but I want to make sure that I ask 

you, Mr. Trimble, the GAO has done work on contamination at 

Superfund sites nationwide and on health assessments of Superfund sites done by the Agency for Toxic Substance and Disease 

Registry. These assessments find risks of cancer, development 

issues, neurological effects. So my question to you, Mr. Bearden, 

244 

what could be the consequences of delaying emergency removal actions? 

Mr. BEARDEN. Assuming the delay actually resulted in increased 

exposure to whatever contaminants, then the problems being cited 

by ATSDR could be expected to be great. 

Mrs. CAPPS. So you two are sort of in agreement with the notion 

that if something is discovered, that the local responders really are 

in the best position because they are close and can make that initial assessment. It doesn’t remove EPA’s responsibility but it allows 

the emergency response to happen the way emergency responders 

are trained to do. They come in and make an assessment when 

there is a little more time in their favor. Would you agree? Any 

other comments you wish to make on either of these points, either 

of you? 

Mr. BEARDEN. No. 

Mrs. CAPPS. Then I will yield back the balance of my time. 

Mr. SHIMKUS. The gentlelady yields back her time. The chair 

now recognizes the gentleman from Florida, Mr. Bilirakis, for 5 

minutes. 

Mr. BILIRAKIS. Thank you. I appreciate it, Mr. Chairman. 

Mr. Bearden, what recourse do states currently have if they disagree with an EPA decision or remedy and what recourse do states 

have if they disagree with another federal agency’s decision or remedy? 

Mr. BEARDEN. Under the current existing mechanism, if it is a 

site that would be funded with federal Superfund appropriations 

for the remedial action, since the state is responsible for sharing 

the cost, as I outlined in my prepared statement, the state may 

choose not to provide those matching funds, and under existing law 

in CERCLA, EPA would not have the authority to use the federal 

Superfund appropriations. So that is some leverage that the state 

could be provided, and that is the underlying intent of the way the 

matching funds requirements are structured to have a factor be included in the federal decision on whether or not the state agrees 

to provide its match. So those again are circumstances where 

Superfund appropriations are used so that would not apply to sites 

where private potentially responsible party funds are used through 

enforcement actions. In those cases, then the state input is limited 

to the consultation process under existing law. 

In terms of federal facilities, as was mentioned earlier, there is 

a provision in existing law for states to challenge a selection of a 

remedial action in a U.S. District Court as outlined in my statement, so that is a mechanism specifically at federal facilities where 

it would be administered and funded by other federal agencies like 

the Department of Defense and Department of Energy. 

Mr. BILIRAKIS. Thank you. Mr. Trimble, during the first day of 

this hearing, the subcommittee heard testimony comparing the 

compliance rate of federal facilities under the Clean Water Act and 

the RCRA. The testimony indicated that due to the ability of the 

states to impose and collect penalties under RCRA but not under 

the Clean Water Act, that RCRA experiences a significantly higher 

compliance rate by federal facilities than does the Clean Water Act. 

Has GAO ever conducted a similar evaluation, and if so, what did 

you find? 

245 

Mr. TRIMBLE. Again, to my knowledge, we have not done such a 

study. I am happy again to look to make sure I am not missing 

something when I say that. I think in general, the issue of having 

a stick to ensure compliance makes people behave better. As I 

noted earlier, we have made recommendations in terms of EPA’s 

ability to make other federal agencies comply. I think that the 

issue of DOD’s noncompliance with the requirement that they sign 

an interagency agreement with the EPA governing the cleanup at 

two NPL sites, Tindall Air Force Base in particular comes to mind, 

GAO has made recommendations in the past as a matter of congressional consideration to give EPA more authority to force compliance by DOD when they are faced with these kinds of situations. 

Mr. BILIRAKIS. OK. One more question, Mr. Chairman. 

Mr. Trimble, in your testimony you mention Executive Order 

12580. Does this Executive Order enable some or all federal agencies including those that are potentially responsible parties to selfregulate and make determinations regarding their compliance with 

state and federal cleanup requirements, and if you can please explain briefly? 

Mr. TRIMBLE. Again, I will probably lean on David to help me out 

here. 

Mr. BILIRAKIS. OK. That would be great. 

Mr. TRIMBLE. But I think it gives agencies like DOE and DOD 

the authority to manage the cleanups. EPA is still in sort of a partner position but also to provide independent oversight on those activities to make sure the cleanups are done appropriately, which, 

again, speaks to the need for that interagency agreement at places 

like Tindall to make sure they are being done appropriately on 

time and to the correct standards. 

Mr. BILIRAKIS. Yes, please. 

Mr. BEARDEN. Yes. All I would add to that is, when it is a federal 

agency like the Department of Defense, Department of Energy, 

there can be other federal agencies as well, the Executive Order 

that you cited authorizes that agency to execute the President’s authority for the response action, which is carrying out the cleanup 

itself. But when it is a National Priorities List site and a federal 

facility, as Mr. Trimble mentioned, EPA has a prominent oversight 

role, and actually under existing law has final decision-making authority at the federal level for selecting the cleanup actions and the 

deference is to EPA, not the federal agency responsible for carrying 

out the cleanup. And in terms of state involvement, if it is a nonNational Priorities List site, the state primarily is responsible for 

overseeing that cleanup carried out with the President’s delegated 

authorities under the Executive Order. 

Mr. BILIRAKIS. Thank you. I yield back, Mr. Chairman. 

Mr. SHIMKUS. The gentleman yields back his time. The chair now 

recognizes the gentleman from Pennsylvania, Mr. Pitts, for 5 minutes. 

Mr. PITTS. Thank you, Mr. Chairman. I just had a couple questions. Sorry to be in and out with meetings. I apologize of this has 

been asked. 

Mr. Bearden, we understand that it is currently EPA’s policy not 

to list a site on the National Priorities List over the objection of the 

246 

state. Do you think that codifying the EPA policy in the statute 

would ensure that states could count on this policy? 

Mr. BEARDEN. Well, codifying it in statute and making it binding 

by law would certainly require EPA to adhere to that policy. 

Mr. PITTS. Wouldn’t codifying the policy to not list a site on the 

National Priorities List eliminate any potential inconsistent among 

the regions? 

Mr. BEARDEN. Yes, there would not be any discretion in implementing the existing policy if it were to become a uniform statutory 

requirement in all cases. 

Mr. PITTS. Now, do you have any comments or opinions regarding whether it would be benefit to authorize EPA to review actions 

taken by other federal agencies under CERCLA to ensure consistency with EPA cleanup guidelines, rules and regulations? 

Mr. BEARDEN. Well, under existing law, when it is a federal facility on the National Priorities List, already EPA has the authority 

under the interagency agreement to make a decision on the final 

remedy selection. So there already is that mechanism for ultimate 

review in making a decision. 

Mr. TRIMBLE. If I could add to that, what is missing, though, is 

giving EPA the stick if they find noncompliance. So I believe the 

way the language is written, it allows EPA to review, but what 

happens if EPA finds somebody is in noncompliance? And that is 

sort of the situation we have today. 

Mr. PITTS. Thank you. Thank you, Mr. Chairman. 

Mr. SHIMKUS. The gentleman yields back his time. The chair 

wants to ask unanimous consent for a couple letters to be submitted in the record, one letter from public interest groups on 

RCRA Section 202(b) and CERCLA 108(b), a letter from other public interest groups on CERCLA Section 113(h) and Section 105, and 

a letter from Headwaters Resources, also signed by Boral Material 

Technologies. They were referred to in the first testimony, and I 

quote a line in here: ‘‘Headwaters and Boral utilize Section 202(b) 

of RCRA in an attempt to end the recent uncertainty as a matter 

of overall governance. We think Section 202(b) RCRA makes for 

poor public policy. It could enable special interest groups through 

deadline suits to set EPA’s agenda.’’ So we will submit those into 

the record. 

[The information appears at the conclusion of the hearing.] 

Mr. SHIMKUS. I am joined by my colleague from Texas, Mr. 

Green. You are recognized for 5 minutes. 

Mr. GREEN. Thank you, Mr. Chairman. I apologize to our witnesses. We are balancing two committees at the same time, and I 

just finished in the O&I Committee. 

I want to thank you for holding the hearing today. I am happy 

to see GAO and CRS come before us subcommittee to speak on proposals to amend CERCLA and RCRA. 

I have a very urban district in Houston, and it is East Harris 

County, which is a heavy industrial large petrochemical complex in 

the country, and there are a number of Superfund sites in and near 

our district that I have been involved with other the years. The 

most recent one, although it has been there a while, includes the 

U.S. oil recovery site in Pasadena, which was added to the National 

Priorities List last year. From my experience, the Superfund proVerDate Nov 24 2008 12:31 Nov 15, 2013 Jkt 037690 PO 00000 Frm 00252 Fmt 6601 Sfmt 6601 F:\MY DOCS\HEARINGS 113\113-43 CHRIS
247 

gram has played a value role in protecting the environment and 

human health of my constituents and for Americans for all 50 

states, and I am concerned how the proposed legislation would 

change this program. 

Mr. Bearden, is it true that the EPA is already obligated by federal statute to give substantial deference to the states on naming 

sites to the NPL? 

Mr. BEARDEN. The substantial deference is a result of the 2002 

amendments. EPA may still list a site if EPA determines it is necessary to protect human health and the environment but generally 

defers to the state if they desire not to list the site. 

Mr. GREEN. Well, the two I have been involved in, we got concurrence from the state agency. In fact the state agency was very 

happy to have them listed on the site including the current one. 

Mr. Bearden, is it that true that the 2002 amendments to limit 

EPA’s enforcement authorities to CERCLA to pursue the cleanup 

of a site if a state is already pursuing the cleanup under its own 

law? 

Mr. BEARDEN. Yes. The 2002 amendments address that issue. 

Mr. GREEN. You know, again, my experience with Texas is that 

we have had good cooperation between our regional office on our 

Superfund sites. I wish we didn’t have them, but again, in an industrial area, that is going to happen if you have been producing 

chemicals and things for 60, 70 years. 

Mr. Bearden or Mr. Trimble, to your knowledge, has a site ever 

been added to the NPL without the concurrence of the governor of 

the state in which a site is located? 

Mr. BEARDEN. I am not aware of one myself. 

Mr. TRIMBLE. I am not either. 

Mr. GREEN. Mr. Trimble, in your testimony you noted that over 

40,000 potential hazardous release sites have been reported to EPA 

over the past 30 years and yet EPA has determined only a few 

thousand of those sites for NPL designation. Is that true? 

Mr. TRIMBLE. That is correct. 

Mr. GREEN. What happens to those sites that are reported to 

EPA and not added to the NPL? 

Mr. TRIMBLE. They are generally cleaned up under other cleanup 

authorities, so in our most recent report, we note that sites that 

are assessed at a level where the contamination would make them 

eligible for Superfund, so they are severely contaminated sites, the 

majority of those sites actually are not handled by the Superfund 

program but are cleaned up under cleanup authorities principally 

managed by the states. The states manage about 47 percent of all 

those sites. 

Mr. GREEN. So the states handle about—so some of the sites are 

deferred to the states and so that is about 47 percent of them? 

Mr. TRIMBLE. Yes, the states handle more Superfund-caliber sites 

than EPA does under the Superfund program. 

Mr. GREEN. You know, in my experience, though, I haven’t had 

the state being one to take it over because it has always been EPA 

oversight in cleaning up. Our problem is making sure we do due 

diligence and find a responsible party. Otherwise it is going to be 

the taxpayer that ultimately does it, which makes it harder, Mr. 

248 

Chairman, when we don’t have budget appropriations. That is why 

responsible parties are really important. 

You stated in your testimony the number of NPL site designations has increased in recent years. Is that true? 

Mr. TRIMBLE. That is correct. I believe it is running about 22 a 

year. 

Mr. GREEN. And again, a few years ago, in Congressman Ted 

Poe’s district we were borders. It is a dioxin facility that actually 

submerged back in the 1960s and nobody knew about it, but we always knew that the Port of Houston had higher dioxin levels, but 

my industries that were there were being blamed for it and yet it 

was from an old site that very quickly Congressman Poe and I 

worked with EPA to be able to put it on the NPL. So it was a very 

bipartisan effort, and again, the state was happy that we finally 

were able to find the source of that. We still have a cleanup problem. It is encapsulated. How do you deal with sediment in a river 

that is, you know, 40 years old. Can you explain the number of designations has increased and why the number of designations increased in recent years? 

Mr. TRIMBLE. A couple of factors that we have discussed in our 

reports. One is, it is often linked to states’ abilities to take on these 

sites so with the economic downturn in the last few years, the 

states’ ability or willingness to take on the cleanup responsibilities 

for these has gone down, which means the burden gets shifted to 

the federal government. And then also there is some emergence of 

a growing number of complicated sites, like abandoned mine sites, 

that have come on over. 

Mr. GREEN. Thank you, Mr. Chairman, for having the hearing. 

Mr. SHIMKUS. The gentleman’s time is expired. The chair now 

recognizes the ranking member of the full committee, Mr. Waxman, 

for 5 minutes. 

Mr. WAXMAN. Thank you very much, Mr. Chairman. I thank you 

for reconvening the hearing today, and I am pleased that we have 

the opportunity to hear from knowledgeable experts about the 

Superfund program. 

The legislation before us has been presented as correcting a problem where states are not sufficiently consulted in the decisions to 

clean up contaminated sites through the Superfund program. The 

argument is that although Superfund is a federal program carried 

out by federal employees using federal resources, a state should be 

able to slate sites for cleanup, veto sites from being slated for 

cleanup, have a greater say in cleanup decisions, and even collect 

their attorney fees from the U.S. taxpayer when they sue the federal government. I am not sure this approach strikes the right balance. 

Mr. Trimble, if a state wants more control over the cleanup of 

a contaminated site, the state can simply conduct its own cleanup 

under state law and retain full control of all decisions. Isn’t that 

right? 

Mr. TRIMBLE. That is correct. 

Mr. WAXMAN. And in fact, this happens regularly, doesn’t it? 

Mr. TRIMBLE. Yes, it does. About 47 percent of all Superfund-caliber sites are managed by the states. 

249 

Mr. WAXMAN. The states don’t always do that, though, because 

they want federal resources and expertise brought to bear to get 

sites cleaned up. Isn’t that correct? 

Mr. TRIMBLE. That is correct. 

Mr. WAXMAN. In fact, the states often request that EPA come in 

and conduct expensive removal actions and response actions, don’t 

they? 

Mr. TRIMBLE. Yes. 

Mr. WAXMAN. The federal government pays the entire cost of a 

removal action. The states pay just 10 percent of the cost of a response action. The rest is picked up by the federal government. Is 

that correct? 

Mr. TRIMBLE. I believe that is true for remedial actions. I am not 

sure about removal. 

Mr. WAXMAN. And there is a great variation among the states in 

their capacity and resources to carry out site cleanups, isn’t there? 

Some are better at it than others? 

Mr. TRIMBLE. Absolutely. 

Mr. WAXMAN. Even though Superfund is a federal program, the 

law provides for significant state involvement. Under the statute as 

it currently stands, EPA is required to provide ‘‘substantial and 

meaningful participation’’ to states. 

Mr. Trimble, under current law, are states involved in suggesting 

sites for cleanup under Superfund? 

Mr. TRIMBLE. They are, yes, in terms of reporting sites with contamination and then EPA has a consultative process. 

Mr. WAXMAN. So they can propose sites and have the ability to 

directly list one site on the National Priorities List. Isn’t that the 

case? 

Mr. TRIMBLE. I would defer to Mr. Bearden for a more thorough 

answer on that, but I don’t think they have the authority to list. 

I mean, I wouldn’t go quite that far. 

Mr. WAXMAN. Let me continue with my questioning for you. 

Under current law, EPA seeks concurrence from states before slating a site for cleanup on the National Priorities List. Is that correct? 

Mr. TRIMBLE. Under policy, correct. 

Mr. WAXMAN. Under current law, states can block EPA from carrying out a selected response action by not agreeing to pay the cost 

share for that response action. Isn’t that right? 

Mr. TRIMBLE. Yes, EPA could not use funds to clean that site up 

under the Superfund program without state concurrence. 

Mr. WAXMAN. Finally, Mr. Trimble, if a state wants to take a 

leadership role at a Superfund site under current law, they can assume the lead under cooperative agreements with EPA. Isn’t that 

correct? 

Mr. TRIMBLE. That is correct. 

Mr. WAXMAN. Thank you. It is natural that a state would want 

to be able to tell EPA what to focus on and what to spend money 

on and what not to spend money on. It is natural that a state 

would want federal resources available for use at their discretion. 

But this is a national program that must be available to clean up 

the most contaminated sites in every state. It is our job to ensure 

a balanced approach. 

250 

Mr. Chairman, I have serious concerns about certain aspects of 

these bills. I think they are a work in progress. If you are interested in moving these bills, I urge you to convene a process that 

would allow us to examine whether there are problems here that 

need to be addressed and how to address them. 

I thank the witnesses, and I hope the chairman will consult with 

us on some of these ideas. 

Mr. SHIMKUS. The gentleman yields back his time. Just to address the ranking member, we have already had some staff attempts to talk about this. This is a legislative hearing. I think 

there are two issues raised on some of the provisions that it would 

be helpful to get input and maybe move forward, and we will let 

our staffs give that a try first, and if members want to be engaged, 

they know where to find me. 

With that, we want to thank our second panel for coming. This 

is a legislative hearing, which is for us to gather input, which we 

have done today with your help and your expertise. We thank you, 

and with that, the hearing is now adjourned. 

[Whereupon, at 11:33 a.m., the subcommittee was adjourned.] 

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